25:0600(45)NG - AFGE Local 3231 and HHS, SSA -- 1987 FLRAdec NG
[ v25 p600 ]
25:0600(45)NG
The decision of the Authority follows:
25 FLRA No. 45
AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL CIO, LOCAL 3231
Union
and
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, SOCIAL
SECURITY ADMINISTRATION
Agency
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
cleanup.
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
purposes.
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 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) Except when the head of an Executive agency a military
department, or of the government of the District of Columbia
determines that his organization would be seriously handicapped in
carrying out its functions or that costs would be substantially
increased, he shall provide, with respect to each employee in his
organization that --
(A) assignments to tours of duty are scheduled in advance over
periods of not less than 1 week;
(B) the basic 40-hour workweek is scheduled on 5 days, Monday
through Friday when possible, and the 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) Federal Personnel Manual (FPM), Chapter 610, subchapter 3; FPM
Supplement 990-2, Book 610, subchapter S3-2; FPM, Chapter 630,
subchapter 11; FPM Supplement 990-2, Book 630, subchapter S11.
United States
Office of
Personnel Management Washington, D.C. 20415
December 1, 1986
Mr. Harold D. Kessler
Director of Case Management
Federal Labor Relations Authority
500 C Street, S.W.
Washington, D.C. 20424
Re: American Federation of Government Employees, AFL-CIO, -local
3231 and Department of Health and Human Services, Social Security
Administration Case No. 0-NG-687 17 FLRA 554 (1985)
Dear Mr. Kessler:
This is in response to your letter of September 15, 1986, requesting
an advisory opinion concerning the proper interpretation of civil
service laws and regulations which pertain to the disputed contract
proposal in the above referenced case.
The union offered the following contract proposal:
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
cleanup.
The agency had terminated a 15 minute paid "grace period" connected
with the half hour unpaid lunch period. Instead, in those offices where
the unpaid lunch period was to be greater than 30 minutes, the agency
decided to extend the office hours by the same amount.
Under 5 U.S.C. Section 6101(a)(2)(A), the head of each Executive
agency is required to establish a basic administrative workweek of 40
hours for each full-time employee in the organization. Normally, the
40-hour basic workweek is scheduled on 5 days, Monday through Friday.
Each workday consists of 8 hours with an additional authorized unpaid
lunch period. The length of the lunch period is subject to the
administrative authority of each agency.
A lunch break is a period of time set aside for the purpose of
eating. Agency heads have consistently allowed for lunch periods during
the workday under their general authority to regulate the conduct of
employees contained in section 301 of title 5, United States Code.
Normally, an employee is off duty and in a nonpay status during an
authorized lunch period. Any extension of the non-compensated lunch
period must be matched by a similar extension of the workday in order to
comply with the requirement in Section 6101(a)(2)(A) for a 40-hour
workweek.
Rest periods are for the purpose of providing a brief period of time
for a respite from the work routine and are distinguished from lunch
periods in that they are a part of the basic workweek for which
employees are compensated. The clear intent of the union's proposal is
to provide the employees with a longer period of time to eat. In their
submission to the Federal Service Impasses Panel, the union stated that
the 10 minutes of preparation/cleanup time was in connection with the
lunch period. Permitting employees to be compensated for the 10 minutes
would ignore the legal distinctions between lunch periods and rest
periods and the underlying purposes of each.
Based on the above, the proposal, in effect, would provide for a
workweek of less than 40 hours since the extension of the lunch period
(non-compensated) by 10 minutes would not be matched by a similar
extension of the workday. The proposal would, therefore, violate the
requirement in 5 U.S.C. Section 6101(a)(2)(A) for a 40-hour workweek.
Sincerely,
Allan D. Heuerman
Assistant Director for
Employee, Labor and Agency
Relations