U.S. Federal Labor Relations Authority

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17:0959(128)AR - Region III, SSA, HHS and Region III, AFGE National Council of SSA Field Operations Locals -- 1985 FLRAdec AR

[ v17 p959 ]
The decision of the Authority follows:

 17 FLRA No. 128
                                            Case No. 0-AR-571
    This matter is before the Authority on an exception to the award of
 Arbitrator Gladys Gershenfeld filed by the Activity under section
 7122(a) of the Federal Service Labor-Management Relations Statute and
 part 2425 of the Authority's Rules and Regulations.
    The dispute in this matter arose when the Activity changed the lunch
 and rest breaks of employees in a number of offices to ensure that all
 employees in all of its offices were provided with a 30-minute unpaid
 lunch break and two 15-minute paid rest breaks separate from the lunch
 break.  More specifically, the Activity terminated a long-standing
 practice in 20 of its offices of granting employees 10 to 15 minutes
 paid time in connection with their 30-minute unpaid lunch periods,
 changed another practice in 3 offices of granting employees an
 additional 15 minutes of paid time on payday for personal banking
 purposes, and changed the rest-break practices in 14 offices, increasing
 the rest-break time in 13 of those offices to ensure that the employees
 were given the two 15-minute paid rest breaks each day.  The Arbitrator
 found that the daily extensions of the lunch break, with additional time
 on payday in some offices, constituted established past practices.  The
 Arbitrator determined that the past practice provision in the parties'
 collective bargaining agreement was controlling in this situation in the
 absence of any contrary laws or government-wide rules or regulations.
 Finding no legal, regulatory or contractural prohibitions against the
 practice of granting the paid-time extensions of the lunch break and
 further finding that management had the authority to grant paid time off
 under its authority to grant administrative leave, the Arbitrator
 concluded that the Activity violated the parties' agreement when it
 unilaterally changed the established practices.  As a remedy, the
 Arbitrator directed the Activity, among other things, to reinstate and
 continue the practices.
    In its exceptions to that portion of the Arbitrator's award, the
 Activity principally alleges that the award is contrary to 5 U.S.C.
 6101(a).  /1/ The Authority agrees.
    Under 5 U.S.C. 6101, agencies are required to schedule 40 hours of
 work per week for each full-time employee and, when possible, to
 schedule the work in five days with 8 work hours each day.  /2/ The
 Comptroller General has decided that unpaid breaks in the working hours,
 such as lunch breaks, /3/ may be scheduled pursuant to section
 6101(a)(3)(F), but such noncompensable break time may not exceed one
 hour without concurrence of the employee.  B-190011, December 30, 1977.
 The Comptroller General has also ruled that employee lunch breaks under
 section 6101(a)(3)(F) may not be expanded through the use of other
 authority.  Id.  More specifically, in B-190011 the Comptroller General
 decided that while an agency has the discretionary authority to grant
 employees brief rest periods of paid time as part of a basic 8-hour
 workday, the agency may not grant employees such short periods of
 compensable time contiguous to lunch breaks.  /4/ An agency also has the
 discretionary authority to grant an employee an excused absence from
 duty for brief periods without charge to leave or loss of pay (commonly
 referred to as administrative leave) consistent with Office of Personnel
 Management guidance, FPM Supplement 990-2, Book 630, Subchapter S11, and
 decisions of the Comptroller General, e.g., 63 Comp.Gen. 542 (1984).
    In this case, the Arbitrator recognized that the Comptroller General
 had held that lunch breaks could not be extended by other authority such
 as by granting paid rest breaks contiguous to the lunch period.  Indeed,
 the Arbitrator acknowledged that with respect to a number of offices
 which had only one 15-minute rest break and an extended lunch period
 prior to the Activity's changes, the origin of the practice seemed to be
 that the Activity had extended the lunch period with a paid break.
 Nevertheless, in rendering the award that she did, the Arbitrator
 concluded that regardless of the origin of the practice the lunch-period
 extensions involved in this case were not rest breaks but permissible
 grants of administrative leave.  However, the Authority finds that such
 an award is not authorized by law.  The Arbitrator did not find and it
 is not otherwise apparent that the Activity had expressly exercised its
 discretionary authority to grant administrative leave in the
 circumstances involved.  Moreover, in view of the duration and scope of
 the practice involved, the excused absences awarded by the Arbitrator
 are not consistent with the provisions of FPM Supplement 990-2 and the
 decisions of the Comptroller General.  Furthermore, management has a
 responsibility to correct unlawful past practices and the corrective
 action may not be delayed by its obligation to bargain over the impact
 and implementation of a decision to change such a practice.  See
 Department of the Interior, U.S. Geological Survey, Conservation
 Division, Gulf of Mexico Region, Metairie, Louisiana and American
 Federation of Government Employees, Local 3457, AFL-CIO, 9 FLRA 543, 546
 n.9 (1982);  see also Local 1688, International Brotherhood of
 Electrical Workers and U.S. Army Engineer District, Omaha, 5 FLRA 44
    Therefore, to the extent that the Arbitrator's award directs the
 Activity to reinstate and continue the practice of permitting expanded
 lunch breaks with periods of paid time the award is contrary to 5 U.S.C.
 6101(a).  American Federation of Government Employees, AFL-CIO, Local
 3231 and Department of Health and Human Services, Social Security
 Administration, 17 FLRA No. 83 (1985).  Accordingly, the Arbitrator's
 award is modified by striking that part of the award which directs the
 Activity to reinstitute and continue the practice found contrary to law.
  Issued, Washington, D.C., May 9, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ 5 U.S.C. 6101(a) provides, in pertinent part:
          Sec. 6101.  Basic 40-hour workweek;  work schedules;
       regulations (a)(1) . . .
          (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
          (3) . . .
          (B) the basic 40-hour workweek is scheduled on 5 days, Monday
       through Friday when possible, and that 2 days outside the basic
       workweek are consecutive;
          (C) the working hours in each day in the basic workweek are the
          (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.
    /2/ The Comptroller General has held that the basic 40-hour workweek
 may include holidays and hours in which an employee is in a leave with
 pay status.  42 Comp.Gen. 195 (1969).
    /3/ It is well-established that time set aside for a lunch break is
 not compensable unless the employee is required to perform substantial
 official duties during that period.  E.g., Baker v. United States, 218
 Ct.Cl. 602 (1978);  42 Comp.Gen. 195 (1969).
    /4/ In the same decision, the Comptroller General encouraged agencies
 to schedule realistic employee lunch periods of 45 minutes or an hour
 under 5 U.S.C. 6101(a)(3)(F) where that amount of time is required for
 the employees to have lunch, with the caution, however, that any
 extension in the 30-minute unpaid lunch period would necessitate an
 appropriate increase in the basic workday to maintain the requisite
 40-hour workweek.