25:0600(45)NG - AFGE Local 3231 and HHS, SSA -- 1987 FLRAdec NG

[ v25 p600 ]
The decision of the Authority follows:

 25 FLRA No. 45
                                            Case No. 0-NG-687
                                            17 FLRA 554
                       DECISION AND ORDER ON REMAND
                         I.  Statement of the Case
    This case is before the Authority pursuant to a remand from the
 United States Court of Appeals for the District of Columbia Circuit.  In
 the decision remanded by the Court, the Authority had found the
 following proposal nonnegotiable.
       Upon request all employees in Area IV will be granted paid time
       without charge to leave, up to 5 minutes before and up to 5
       minutes after the lunch period, for the purpose of preparation and
    In its ruling, the Authority relied solely upon a decision of the
 Comptroller General.  In remanding the case, the Court stated that while
 the Comptroller General's decision had precedential value, it lacked
 binding force and that the Authority was required to evaluate
 independently the Union's proposal against the applicable provision of 5
 U.S.C. Section 6101.  The Court noted that the Office of Personnel
 Management (OPM), as contrasted with the Comptroller General or the
 Authority, is responsible for administering 5 U.S.C. Section 6101.  We
 solicited an advisory opinion from OPM as to whether the proposal is
 consistent with that section.  The response of OPM is attached to this
 decision as Appendix.  The parties filed comments on the OPM response.
                   II.  Positions of OPM and the Parties
    OPM is of the opinion that the proposed extension of the lunch period
 without a matching extension of the workday violates the requirement in
 5 U.S.C. Section 6101(a)(2)(A) for a 40-hour workweek.  The Agency
 agrees with OPM's position.  The Union does not.  The Union contends
 that nothing in 5 U.S.C. Section 6101 specifically prohibits adding a
 paid extension to the unpaid lunch period.  Additionally, it asserts
 that the Agency has broad discretion to excuse employees from work with
 pay and without charge to leave.  Consequently, it contends that the
 proposal is negotiable.
                       III.  Analysis and Conclusion
    As explained by the Union, the proposal was put forth in response to
 the Agency's action in terminating a practice of allowing employees 45
 minutes, rather than 30, for lunch without requiring a corresponding 15
 minute extension of the work day.  According to its submissions the
 Union seeks 5 minutes "paid time without change to leave" on each end of
 the lunch period to allow employees time for preparation and cleanup in
 the lunchroom.
    Section 6101 of title 5 requires that the basic workweek consist of
 40 hours of "work." /1/ The issue presented by this dispute is,
 essentially, whether time set aside for eating constitutes hours of
 "work" to be counted toward the 40 hour requirement.
    The question of what sort of activities constitute "work" or
 "employment" for purposes of compensation has been litigated in the
 context of claims for payment of overtime.  The general rule which has
 evolved is that those activities which are controlled or required by the
 employer and pursued necessarily and primarily for the benefit of the
 employer are compensable as "employment" or "work" under statutes
 governing payment of overtime.  Armour and Co. v. Wantock, 323 U.S. 126
 (1944);  Leone v. Mobil Oil Corporation, 523 F.2d 1153 (D.C. Cir. 1975);
  and NTEU v. Gregg, No. 83-546 (D.D.C. Sept. 28, 1983).  In considering
 the specific issue of whether time set aside for, or devoted to, eating
 is "work" or "employment" for purposes of overtime compensation, the
 Court of Claims has held that it is not unless substantial labor is
 performed in the time set aside for eating (or sleeping).  For example,
 Baker v. United States, 218 Ct. Cl. 602, 617-24 (Ct. Cl. 1978).  In our
 view the holding of the Court of Claims is consistent with the
 definition of "work" or "employment" which has generally been applied in
 questions relating to what activities are compensable for overtime
    We see no reason why the concept of what is "work" or "employment"
 should be different for purposes of fulfilling the requirement of a
 basic 40 hour workweek than it is for purposes of overtime compensation.
  We conclude that, insofar as time set aside for eating is concerned,
 generally, such activity cannot be considered "work" or "employment" for
 purposes of fulfilling the requirement for a 40 hour workweek.  Because
 the proposal would effectively require counting time set aside for an
 activity that is not "work, i.e. eating, in the 40 hours of "work"
 required by 5 U.S.C. Section 6101, it conflicts with Federal law and is
 nonnegotiable.  Accord, Decision of the Comptroller General B-190011,
 December 30, 1977.
    We also reject the Union's argument that the Agency has discretion to
 implement the proposal under its authority to excuse employees from work
 with pay and without charge to leave.  The circumstances involved in
 this proposal are distinguishable from those under which the Agency is
 authorized to grant such administrative leave.  This proposal would
 effectively require that the Agency excuse employees from work on
 administrative leave on a regular, daily basis.  In our view, the
 provisions which give agencies the authority to grant administrative
 leave /2/ do not authorize them to grant such leave on a regular, daily
 basis.  Rather, the essence of such leave is that it is only occasionl
 or sporadic -- when warranted by specific circumstances which are not a
 part of the daily routine of work.  We conclude that the Agency's
 authority to grant administrative leave does not extend to the type of
 circumstance involved in this proposal.  Compare National Labor
 Relations Board Union, Local 5 and National Labor Relations Board,
 Region 5, 2 FLRA 327 (1979);  and Long Beach Naval Shipyard, Long Beach,
 California and International Federation of Professional and Technical
 Engineers, Local 174, AFL-CIO, 7 FLRA 362 (1981) in which the Authority
 found negotiable proposals which sought grants of such leave on a
 limited or occasional basis.
                                IV.  Order
    The Union's petition for review is dismissed.  Issued, Washington,
 D.C., February 6, 1987.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) In relevant part, that section provides:
          Chapter 61 -- Hours of Work
          Subchapter 1 -- General Provisions
    Section 6101.  Basic 40-hour workweek;  work schedules;  regulations.
          (2) The head of each Executive agency, military department, and
       of the government of the District of Columbia shall --
          (A) establish a