17:0959(128)AR - Region III, SSA, HHS and Region III, AFGE National Council of SSA Field Operations Locals -- 1985 FLRAdec AR
[ v17 p959 ]
17:0959(128)AR
The decision of the Authority follows:
17 FLRA No. 128
REGION III, SOCIAL SECURITY
ADMINISTRATION, DEPARTMENT OF
HEALTH AND HUMAN SERVICES
Activity
and
REGION III, AFGE NATIONAL COUNCIL
OF SSA FIELD OPERATIONS LOCALS
Union
Case No. 0-AR-571
DECISION
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
(1981).
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
Chairman
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
days.
(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
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.
/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.