[ v19 p1100 ]
The decision of the Authority follows:
19 FLRA No. 124 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 3342, AFL-CIO Union and DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION Agency Case No. O-NG-1032 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 Chairman 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.