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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.