[ v17 p554 ]
The decision of the Authority follows:
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.