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U.S. Federal Labor Relations Authority

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19:1100(124)NG - AFGE Local 3342 and HHS, SSA -- 1985 FLRAdec NG

[ v19 p1100 ]
The decision of the Authority follows:

 19 FLRA No. 124
                                            Case No. O-NG-1032
    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 presents an issue
 concerning the negotiability of one Union proposal.  Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determination.
                              Union Proposal
          It is the policy of the Jamestown, NY District Office to insure
       that employees receive the two breaks they are entitled to take
       during the day.
          There will be no set break schedule for any employee, in any
       position within the District Office.  (Only the underlined portion
       is in dispute.)
    The Union's proposal would prohibit the Army from instituting a set
 schedule for the two daily breaks that bargaining unit employees are
 entitled to take under the parties' collective bargaining agreement.
 The Agency contends the proposal is outside the duty to bargain in that
 it is contrary to management's rights to determine the Agency's mission
 under section 7106(a)(1) of the Statute, and to assign work and
 determine the number of employees through which the Agency's operations
 will be conducted under section 7106(a)(2)(A) and (B) of the Statute.
 /1/ The essence of the Agency's contentions is that the proposal would
 deny the Agency the flexibility to determine the number of employees
 needed to serve the public and carry out the Agency's mission.  However,
 the Authority notes that the Union's stated intent with respect to the
 proposal in question is to allow employees flexibility in scheduling
 breaks so long as the Agency's mission is not significantly disrupted.
 /2/ Specifically, under the proposal, while the Agency could not
 establish set periods at which time employees must take their breaks,
 neither would the proposal permit employees to schedule breaks at will
 without regard to the Agency's need for their services.  /3/ The
 language of the proposal is not inconsistent with the Union's stated
 intent, and the Authority hereby adopts the Union's interpretation.
 Thus, under the proposal, the Agency would retain the discretion to deny
 any particular employee's request for a break at a time when the
 employee's services were needed.
    The proposal in dispute herein is similar to the proposal found to be
 within the agency's duty to bargain in National Treasury Employees Union
 and Federal Deposit Insurance Corporation, 14 FLRA 179, 181-82 (1984).
 In that case, the Authority held that a proposal which would allow
 employees the right to decide when to use compensatory time to which
 they were entitled was not contrary to management's rights since the
 agency was not required to grant an employee's particular request for
 compensatory time where mission needs dictated otherwise.  In terms of
 this case, the scheduling of employee breaks to which employees are
 entitled based upon the parties' agreement bears on material difference
 from the scheduling of compensatory time in Federal Deposit Insurance
 Corporation.  In a similar case involving the granting of employee
 breaks, the Authority held that whether to grant "rest periods" is a
 matter which is subject to negotiation insofar as the relevant proposal
 in that case would not have prohibited management from assigning work to
 employees during such periods.  American Federation of Government
 Employees, AFL-CIO, Local 3511 and Veterans Administration Hospital, San
 Antonio, Texas, 12 FLRA 76, 88 (1983) (Union Proposal 30).  Furthermore,
 an agency's duty to bargain has been held to extend to the time at which
 breaks might be observed during the work day.  See Department of Health
 and Human Services, Social Security Administration, Baltimore, Maryland
 and American Federation of Government Employees, AFL-CIO, 19 FLRA No.
 123, slip op. at 4 (1985).  The proposal in dispute herein, like that
 involved in Social Security Administration, concerns the scheduling of
 employee breaks.  Therefore, in light of the above precedent, the
 Authority finds the Union's proposal to be within the Agency's duty to
 bargain.  /4/
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain concerning the Union's
 proposal.  Issued, Washington, D.C., August 30, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ 5 U.S.C. 7106(a) provides in relevant part:
          Sec. 7106.  Management rights
          (a) Subject to subsection (b) of this section, nothing in this
       chapter shall affect the authority of any management official of
       any agency--
          (1) to determine the mission . . . of the agency;  and
          (2) in accordance with applicable laws--
          (A) to . . . assign (and) direct employees in the agency . . .
          (B) to assign work . . . and to determine the personnel by
       which agency operations shall be conducted(.)
    /2/ Request for Assistance to the Federal Service Impasses Panel at 4
 (Exhibit to Union's petition for review).
    /3/ In this regard, the Union offered to have employees notify the
 receptionist and supervisor upon taking a break, to allow breaks to be
 rescheduled when they conflict with meetings, and to provide that a
 minimum number of employees be on duty before another employee could
 take a break.  Request for Assistance at 3-4.
    /4/ In finding the Union's proposal to be within the duty to bargain,
 the Authority makes no judgment as to its merits.