37:1058(87)NG - - AFGE Local 1940 and Agriculture, Agricultural Research Service, Plum Island Animal Disease Center - - 1990 FLRAdec NG - - v37 p1058

[ v37 p1058 ]
The decision of the Authority follows:

37 FLRA No. 87




LOCAL 1940









October 18, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns one proposal which would reduce the lunch period for the day shift marine crew at the Plum Island Animal Disease Center from 1 hour to one half hour.

For the following reasons, we conclude that the proposal is negotiable.

II. Background

The marine crew in this case operates ferry boats which carry supplies, passengers, and equipment between Orient Point, New York; Old Saybrook, Connecticut; and Plum Island, New York. The marine crew members are assigned to three different tours of duty. The day tour from Old Saybrook to Plum Island is from 6:30 a.m. to 3:30 p.m., with a 1-hour lunch period. The day tour from Orient Point to Plum Island is from 7:45 a.m. to 5: p.m., with a 1-hour lunch period and a 15-minute scheduled overtime period to allow the crew to tie up the boat at the end of the day. The night shift operates from 4:45 p.m. to 1:15 a.m., with a one half hour lunch period.

The Union proposed the following change regarding the marine crew's lunch period:

Article 7.

The Center may establish a lunch period for [Marine Crew] vessel employees as follows:

A. Day shift - up to one-half (1/2) hour normally between 11:00AM and 2:00PM.

Petition for Review at 2 (emphasis in original).

III. Positions of the Parties

A. The Agency's Position

The Agency asserts first that the "[t]he Union's proposal establishes a new tour of duty, an issue which is negotiable only at the election of the Agency." Statement of Position at 4. The Agency argues that the practical effect of the proposal "would be to significantly increase overtime costs and negate the agency's determination to assign the members of the marine crew to their current tours of duty." Id. The Agency asserts that because the proposal would change the existing tour of duty, it is negotiable only at the Agency's election for the reasons stated in Department of the Air Force, Scott Air Force Base Illinois, 33 FLRA 532 (1988) (Scott AFB). The Agency also argues, in this regard, that "[t]he Authority has long held that the length of lunch periods is outside the duty to bargain." Id. at 6. In support of this contention, the Agency cites Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, AFL-CIO, 19 FLRA 1085, 1087-88 (1985) (Social Security); and National Treasury Employees Union, Chapter 153 and Department of the Treasury, U.S. Customs Service, 21 FLRA 1116, 1121 (1986) (Customs).

Second, the Agency maintains that the Union's proposal is inconsistent with 5 C.F.R. § 610.121(b)(1), which requires agency heads to schedule employees' workweeks to correspond with actual work requirements. The Agency claims that although marine crew employees make frequent transporting runs during the beginning and ending hours of the day shift, runs are made less frequently during the intervening hours. Therefore, the Agency contends that "to meet the work requirement without a substantial increase in cost, the agency decided to schedule the maximum break in working hours allowable under 5 CFR 610.121(a)(6)--one hour--for the employees' lunch break." Id. at 8. The Agency argues further that "[b]y doing so, the agency meets the regulatory requirement contained in 5 CFR 610.121(b)(1) of scheduling the workweek to correspond with work requirements, while eliminating unnecessary overtime costs resulting from a 30-minute lunch period." Id. at 8-9. The Agency claims that the proposal would interfere with its "ability to determine the hours of work which correspond with the employee's actual work requirements" and its "ability to use up to a 1-hour break in the workday to meet the requirement of 5 CFR 610.121(a)(6)." Id. at 9.

Next, the Agency disagrees with the Union's position that the proposal is an appropriate arrangement under section 7103(b)(3) of the Statute. The Agency argues that the proposal does not constitute an appropriate arrangement because it "negates the exercise of management's right under section 7106(b)(1) to elect not to bargain over the numbers, types, and grades of employees assigned to any tour of duty." Id. at 11.

Finally, the Agency argues that although the members of the marine crew are prevailing rate employees, the "union cannot assert that their ability to negotiate over the length of the lunch period is a right 'grandfathered in' by sections 9(b) and 704 of Pub. L. 92-392 and the Statute, respectively." Id. at 12. According to the Agency, the parties only collective bargaining agreement negotiated prior to August 19, 1972, did not contain provisions covering lunch periods.

B. The Union's Position

The Union contends that the proposal does not affect the Agency's right to determine the numbers, types, and grades of employees. The Union argues that "Congress made a clear distinction between negotiating changes in shifts and tours of duty and changes in shifts and tours of duty which affect the numbers, types, and grades of employees." Reply Brief at 6. The Union asserts that "when a change in a tour of duty results in a change in 'numbers, types, and grades' of the employees assigned to those tours . . . an employer may exercise an option to bargain or not; otherwise, the change itself is a mandatory subject for bargaining." Id. at 7.

As its second argument, the Union asserts that even if the proposal established a new tour of duty, it "would still be negotiable because the proposal, if implemented, would have a negligible effect on staffing patterns." Id. at 8. The Union states that "[m]anagement could, at its option, have at least two alternatives should the clause be agreed to: it could slightly readjust the ferry's schedule, or it could slightly modify shifts which might be impacted, or both." Id. at 9.

Third, the Union asserts that the proposal is not inconsistent with 5 C.F.R. § 610.121(b)(1). The Union notes that the Agency "can and does routinely modify both the ferry schedule and the work schedules of employees aside from the marine crew." Id. at 9. The Union also asserts that the Agency has not considered the benefits of improved employee morale and productivity in denying negotiation over the time change, but rather "merely alludes to 'excessive costs' presumably from additional overtime pay costs." Id. at 10.

Finally, the Union argues that its proposal is an appropriate arrangement under section 7106(b)(3) of the Statute. The Union asserts that the current lunch hour "denies employees 30 minutes a day of the use of their non-paid personal time." Id. Therefore, the Union claims that its proposal would alleviate "the adverse effects by not requiring employees to spend an unneeded extra 1/2 hour for lunch." Id.

IV. Analysis and Conclusions

A. The Union's Proposal Does Not Interfere With the Agency's Right to Determine the Numbers, Types, and Grades of Employees Assigned to a Tour of Duty

A decision to change the starting and quitting times of bargaining unit employees is negotiable unless an agency demonstrates that the change is an exercise of management's right to determine the numbers, types, and grades of employees or positions assigned to a work project or tour of duty under section 7106(b)(1) of the Statute. See International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 351 (1988). An agency's right to determine the numbers, types, and grades of employees assigned to a tour of duty encompasses the right to determine the number of employees it considers necessary to have on duty. See National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA No. 26 (1990) (NWS). See also Department of the Navy, Navy Public Works Center, Norfolk, Virginia v. Federal Labor Relations Authority, 814 F.2d 982 (4th Cir. 1987).

The Union's proposal does not restrict in any way the Agency's right to determine the number of employees that it considers necessary to have on duty. Unlike the situations in NWS and Scott AFB, where the agencies modified tours of duty in order to have specific numbers of employees on duty at specific times, the proposal in this case does not affect or change the number of employees on the day shift.

Moreover, the proposal does not change the marine crew's tour of duty. A tour of duty is defined in 5 C.F.R. § 610.102(h) (1990) as:

. . . the hours of a day (a daily tour of duty) and the days of an administrative workweek (a weekly tour of duty) that constitute an employee's regularly scheduled administrative workweek.

We note, in this regard, that under 5 C.F.R. § 610.111(a)(2) a regularly scheduled administrative workweek "consists of the 40-hour basic workweek . . . plus the period of regular overtime work, if any, required of each employee."

Accordingly, a regularly scheduled workweek may include regular overtime work. As such, even if the Agency decided to retain the existing tours of duty, a decision not mandated by the proposal, it would be free to do so even though that decision could require the scheduling of regular overtime. In other words, under the proposal, the current tour of duty (6:30 a.m. to 3:30 p.m.) could remain in effect, even though one-half hour of the 9 hours would constitute overtime.

Consequently, as long as the Agency scheduled one-half hour lunch periods for the marine crew, the Agency could, consistent with the proposal, establish any tour of duty it desired. That is, the Agency could retain the existing tour, could change the existing tour by changing either the starting or the quitting times, or could establish a completely new tour. Put simply, the proposal affects only the length of the lunch period. The proposal imposes no requirements or limitations on the Agency's ability to establish tours of duty.

As the proposal does not, by its terms, either require or prohibit any changes in the tours of duty of the marine crew, it also does not affect the Agency's right to determine the numbers, types, and grades of its employees assigned to a tour of duty. Accordingly, we reject the Agency's assertion that the proposal directly interferes with its right under section 7106(b)(1) of the Statute.

We also reject the Agency's assertion that "[w]hile the Authority has held that the time at which breaks and lunch may be observed within the workday is a mandatory subject of bargaining, the actual length of the breaks, lunch, or the workday has been determined not to be a mandatory subject for negotiation." Statement of Position at 6. The decisions relied on by the Agency--Customs and Social Security--address proposals relating to the time during the workday at which breaks and lunch may be observed. In both cases, the Authority held only that "the time at which breaks and lunch may be observed within the workday (and not the length of the breaks, lunch or workday themselves) is a matter within an agency's duty to bargain." Customs, 21 FLRA at 1121. See also Social Security, 19 FLRA at 1088. The parenthetical phrase in both decisions reflects nothing more than a recognition that some proposals relating to the length of breaks or lunch periods may not be negotiable. Neither decision, however, holds, implicitly or explicitly, that proposals relating to the length of lunch periods in general, or one-half hour lunch periods in particular, are nonnegotiable.

B. The Agency Has Not Shown That the Union's Proposal is Inconsistent With 5 C.F.R. § 610.121(a)(6) and (b)(1)

The Agency claims that the proposal is inconsistent with 5 C.F.R. § 610.121(a)(6) and (b)(1), which provide as follows:

§ 610.121 Establishment of work schedules.