17:0554(83)NG - AFGE Local 3231 and HHS, SSA -- 1985 FLRAdec NG

 17 FLRA No. 83
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 3231
 Union
 
 and 
 
 DEPARTMENT OF HEALTH AND HUMAN 
 SERVICES, SOCIAL SECURITY
 ADMINISTRATION 
 Agency
 
                                            Case No. 0-NG-687
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises issues
 relating to the negotiability of the following proposal:
 
          Upon request all employees in Area IV will be granted paid time
       without charge to leave, up to 5 minutes before and up to 5
       minutes after the lunch period, for the purpose of preparation and
       cleanup.
 
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determination.
 The record indicates that the instant appeal arose as a result of
 negotiations pursuant to the Agency's decision to terminate a practice
 of permitting employees in Area IV to take 45 minute rather than 30
 minute lunch periods without a corresponding 15 minute extension of the
 workday.
 
    The Agency contends that the proposal which would attach a 10 minute
 paid break period to the 30 minute unpaid lunch period is nonnegotiable
 because it conflicts with 5 U.S.C. 6101 /1/ as interpreted in
 Comptroller General decision B-190011, December 30, 1977.  The Union
 argues that notwithstanding the statutory requirements regarding paid
 breaks, the proposal would merely require the Agency to exercise its
 authority under 5 U.S.C. 6101(a)(3)(F) to grant paid breaks in working
 hours of up to one hour and thus to append a 10 minute paid break period
 to an unpaid lunch break.
 
    The Authority finds in agreement with the Agency that the proposal is
 inconsistent with law as interpreted by the Comptroller General.  In the
 cited decision, the Comptroller General ruled that under 5 U.S.C. 6101
 an authorized rest period during which an employee is in a paid status
 cannot be granted for the purpose of extending the lunch period.  Thus,
 contrary to the Union's argument, a paid break which is part of the
 workday cannot be appended to the unpaid lunch period under law.
 
    With regard to the other Union argument that the proposal is
 negotiable since it in effect reestablishes a past practice, the
 Authority concludes that this argument is irrelevant because the
 practice is illegal.  The Authority concludes therefore that the Union
 proposal violates law and is therefore outside the duty to bargain.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  
 
 Issued, Washington, D.C., April 17, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ 5 U.S.C. 6101 provides in pertinent part as follows:
 
                                .  .  .  .
 
          (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 or 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 cost 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.