United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Pursuant to the Panel’s determination, Ms. Perciaccante conducted an informal telephone conference on June 21, 2001. The parties were able to resolve some issues concerning mid-term bargaining and alternative work schedules, but failed to reach a complete voluntary settlement of their dispute. The parties each submitted their final offers and supporting statements on the remaining issues. Ms. Perciaccante has reported to the Panel, and it has now considered the entire record.

    Among other things, the parties primarily disagree over: (1) the length of lunch periods; and (2) the extent to which they will negotiate alternative work schedules (AWS) for individual departments during the life of their agreement.

1. Lunch Periods

    The Employer proposes the following wording:

(1) Normally, employees will be granted an unpaid lunch break of either [1] hour or 30 minutes as applicable in the workcenter concerned. The lunch period shall occur approximately in the middle of the shift. The supervisor may establish staggered lunch breaks to ensure coverage. When workload or mission requirements require it, an employee’s lunch break may be temporarily rescheduled but it must still be reasonably near to the middle of the shift.

(2) In those limited circumstances which justify it, the Employer may authorize or continue a paid on the job lunch of up to [20] minutes. However, the Parties agree that any paid meal break is in violation of the law (5 USC Chapter 61) or 5 CFR 551.411(c) where the employees are not required on a more or less regular basis to interrupt their meal to perform duties. Further, paid meal breaks may not be authorized unless a determination is made by the Employer that the employees concerned cannot be given a bona fide meal period (that they cannot be relieved for the purposes of having an uninterrupted meal). If a paid lunch is authorized, the employees shall spend their on-the-job lunch at or near their workstations.

(3) 5 C.F.R. 551.411(c) provides: "bona fide meal periods shall not be considered hours of work except for employees engaged in fire protection or law enforcement activities who receive compensation for overtime hours of work under 5 U.S.C. 5545(c)(1) or (2). However, for employees engaged in fire protection or law enforcement activities who have periods of duty of more than 24 hours, meal periods may be excluded from hours of work by agreement between the employer and the employee."

(4) Notwithstanding the above and the Employer’s right to determine the tour of duty, the Employer agrees that if practicable under the circumstances and not deleterious to mission accomplishment, the Employer may authorize a change to the length of the lunch hour (from 30 minutes to [1] hour or vice versa) to accommodate an employee’s preference.

(5) Furthermore, even though the Employer may reschedule a lunch break as provided in section (1) above, it is the intent of the Parties that such practice should not occur frequently (except where the employee must be transported to a facility for lunch) and, in addition, that employees who have the need for a fixed lunch period on a particular occasion should make such need known to their supervisor, who will attempt to accommodate such a need.

Because the Union’s proposal would, among other things, require 30-minute lunch periods, it affects management’s right to assign work. It also concerns tours of duty, which is a permissive subject of bargaining about which the Employer does not choose to bargain. In this regard, the Federal Labor Relations Authority (FLRA) held in U.S. Department of the Army, Headquarters, XVIII Airborne Corps, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 41 FLRA 56 (1991) (Fort Bragg) that under section 7106(b)(1) of the Statute, proposals to determine the length of a lunch period involve a permissive subject of bargaining, notwithstanding the FLRA’s "wrong and out of sync" decision in American Federation of Government Employees, Local 1940 and U.S. Department of Agriculture, Agriculture Research Service, Plum Island Animal Disease Center, 37 FLRA 1058 (1990)(Plum Island), finding negotiable a proposal to reduce the length of lunch periods from 1 hour to 30 minutes.

    As for the Union’s proposal that the Employer "authorize or continue" a paid on-the-job lunch of up to 20 minutes, under National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 40 FLRA 479 (1991) (Point Mugu), bargaining over paid lunch periods is a permissive subject of bargaining under section 7106(b)(1). The parties’ expired contract, like the Union’s proposal, has wording allowing the Employer to terminate paid 20-minute lunches only if such lunches violate law or Government-wide regulations. In order to avoid repeating the result in a recent FLRA decision involving these parties, U.S. Department of the Air Force, Travis Air Force Base, California and American Federation of Government Employees, Local 1764, 56 FLRA 434 (2000) (Travis AFB),⁽¹⁾ the new contract should clearly eliminate any restrictions on the Employer’s ability to terminate paid lunch periods. In this regard, "the crux of the problem now is that given the [U]nion’s interpretation [of similar language in the previous contract] which gives no effect whatsoever to management’s discretion as indicated in the first sentence of the proposal," the Employer is unwilling "to bargain limits to our discretion to discontinue paid lunches which are inappropriate and unjustified." The Employer’s proposed wording will provide it with the discretion it needs to determine the necessity for paid lunches.

    b. The Union’s Position

    The Union’s proposal is as follows:

(1) The normal meal break on Travis AFB will be a [30] minute unpaid lunch. An employee may go to her/his supervisor and request a longer lunch period. The meal period shall occur approximately in the middle of the shift. The supervisor may establish staggered meal breaks to ensure coverage. This meal break should occur during the same time each day. In those areas where management shows a substantiated compelling need for a one-hour lunch period, management will notify the Union and negotiate with them over this matter. In the event that the award of arbitrator Gerald McKay is vacated, amended, or modified in any way by the FLRA, the parties agree to negotiate all matters vacated, amended or modified by such action.

(2) When circumstances justify, the Employer may authorize or continue a paid on the job lunch of up to [20] minutes. When such lunch is authorized, the employees shall spend their on-the-job lunch at or near their workstation. Any [20] minute lunch break that is determined to be in violation of the law or 5 CFR may be discontinued.

(3) 5 C.F.R. 551.411(c) provides: "[bona fide] meal periods shall not be considered hours of work, except for employees engaged in fire protection or law enforcement activities who receive compensation for overtime hours of work under 5 U.S.C. 5545(c)(1) or (2). However, for employees engaged in fire protection or law enforcement activities who have periods of duty of more than 24 hours, meal periods may be excluded from hours of work by agreement between the employer and the employee."

In response to the Employer’s negotiability arguments, the Union contends that the Panel should retain jurisdiction over this issue because the FLRA held in Plum Island that a proposal to reduce the lunch period from 1 hour to 30 minutes is within the duty to bargain. As for the merits of its proposal, "the Agency has not considered the benefits of improved employee moral[e] and productivity in denying negotiations over the time change." A 1-hour lunch is particularly hard on employees working 4/10 compressed work schedules because they end up working 11-hour days. In fact, in the recent past when the Employer eliminated 20-minute paid lunches, one-fourth of employees who were working 4/10 schedules chose to work 5/8 schedules. Furthermore, the locations of the worksite and the lunch facility prevent employees from conducting errands during the lunch period, whereas a 30-minute lunch period would allow employees to leave work 30 minutes earlier, and spend additional time with their families, churches, and communities. Moreover, "[p]eople have the right to know when their lunch is. They should have the right to make appointments or tell their family what time to have lunch on the table." Also, reducing the length of the lunch period would mean that employees’ products would be available to customers 30 minutes sooner.

    Only day shift employees are required to have a 1-hour lunch, and the Employer has provided no basis for concluding that the day shift differs from the evening and night shifts in such a way that a longer break is required to create more overlap. Nevertheless, its proposal recognizes that the Employer may occasionally have a legitimate reason to change the length of lunch periods, and permits the Employer to negotiate further with the Union if it discovers a "substantiated compelling need" for 1-hour meal periods. With respect to that part of the proposal that addresses 20-minute paid lunch periods, the wording merely reflects the provision in the expired agreement. Retaining the wording would continue to ensure that in those circumstances where the workload is so great that the Employer is unable to send an employee to lunch during an 8-hour shift, the employee would receive a 20-minute paid lunch.

CONCLUSIONS

    Preliminarily, we address the Employer’s negotiability argument. In these circumstances, the Panel is guided by the Federal Labor Relations Authority’s (FLRA) decisions in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell) and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3 (1991)(Bureau of Reclamation), which establish the obligations and limitations relating to the Panel’s authority to resolve impasses where duty-to-bargain issues are raised.⁽²⁾ In this regard, in Plum Island, the FLRA found that a proposal to limit the lunch period to 30 minutes was within the duty to bargain, and did not concern a permissive subject of bargaining under section 7106(b)(1). The FLRA has not reversed Plum Island. Therefore, while we recognize that the decision in Plum Island may be anomalous, because the proposal in that case is substantively identical to the Union’s proposal in this case, we conclude that there is sufficient legal basis for the Panel to consider the merits of the Union’s proposal.⁽³⁾

    Having carefully considered the evidence and arguments presented by the parties, including the parties’ positions regarding the underlying negotiability on the portion of the Union proposal concerning the length of the lunch period, we shall order the adoption of compromise wording which essentially permits the Employer to deviate from a normal lunch period of 30 minutes if it concludes that mission requirements dictate the need for a longer period. In this regard, we are persuaded that the normal lunch period should be 30 minutes because employees are entitled to more predictability than they currently appear to have. During the informal conference and in its written submissions the Employer failed to provide evidence to substantiate the mission-related need for its current practices. Nevertheless, we conclude that the Employer should continue to have some discretion in this matter. As a result, the compromise modifies the Union’s proposal to provide that the Employer may establish longer lunch periods where demanded by mission requirements.

    As for paid lunch periods, we note that the parties’ proposals and arguments are deeply colored by the history surrounding the issue, including the FLRA’s decision in Travis AFB interpreting the provision in their expired CBA. On the merits of their respective positions regarding what should be included in their successor agreement, we believe that paid lunches should only be required in exceptional circumstances, as determined by the Employer. Thus, the compromise provides the Employer with discretion to determine whether paid lunches are necessary. Finally, the compromise eliminates what appears to be superfluous references included by both parties to wording contained in the Code of Federal Regulations.

2. AWS

    a. Employer’s Position

    The Employer’s proposal is as follows:

Section 9. Alternative Work Schedules

(1) All currently approved alternative work schedules which are in effect at the time this agreement is approved will remain in effect during the life of this agreement unless the Employer obtains approval to discontinue them as provided in section g, below. In work areas that do not have any current alternative work schedule approved at this time, nothing will preclude the Parties from voluntarily agreeing to implement coverage under a compressed work schedule program.

(2) Flexitime programs are not in effect. However, nothing would preclude the Parties from agreeing to implement a Flexitime Program on a trial basis. It is agreed and understood that employees who are on any compressed work schedule may not also be on a flexitime schedule.

We agree to either eliminate the current credit hours section (h) or to leave it in.

Section 10. Telecommuting

The parties agree that a telecommuting program for bargaining unit employees will be implemented to conform with the new law relating to this and that such program will be in accordance with agency implementing directives. The parties will meet promptly to discuss this issue when implementing instructions are made available.

Its proposal would permit the parties to negotiate over AWS for individual departments only if they jointly agree to such negotiations. Thus, it would avoid continual requests for negotiations over AWS, which could occur under the Union’s proposal. Even though the Union’s proposal states that it will limit itself to three Panel submissions during the life of the contract, the proposal does not restrict the frequency with which the Union could negotiate AWS for individual employees or departments before coming to the Panel. By contrast, the Employer’s proposal would ensure "repose" from continual bargaining. This is consistent with the Supreme Court’s decision in National Federation of Federal Employees v. Department of the Interior, 526 U.S. 86 (1999), which stated that under the covered-by doctrine, employers have no obligation to engage in "issue-by-issue midterm bargaining." Still, the Union would be able to negotiate AWS after 18 months under the parties’ reopener provision, or during the next contract term. This is reasonable because the Union had the opportunity to negotiate AWS during term negotiations, but did not do so. Additionally, in contrast to the Union’s proposal, which lists flexiplace as a form of AWS, the Employer’s lists it separately, and thereby eliminates the possibility of "imply[ing] that the unique rules regarding AWS such as the ‘adverse impact’ and special review by the Panel would also apply to telecommuting issues."

    b. Union’s Position

    The following wording is proposed by the Union:

c. Establishing AWS:

Whereas the establishment of flexible or compressed work schedules are fully negotiable matters, the parties resolve to negotiate implementation of new AWS programs on request of either party during the life of the agreement. Where the Agency asserts that a particular flexible or compressed schedule would have an adverse agency impact and the Union challenges the Agency’s adverse impact assertion, and the matter is not resolved through negotiations, either party may bring the dispute to the Federal Service Impasses Panel (‘Panel’) for ultimate determination as to whether the subject schedule would create an adverse agency impact. The parties agree that the Union will present only [three] AWS impasses to the Panel during the life of the agreement[.]

d. AWS, as used herein, includes but is not limited to the following options:

(1) Compressed Work Schedules:

a. 4-day, 10-hour workweek.

b. 5/4/9 compressed plan, wherein an employee will work [8] 9-hour days and one 8-hour day, for a total of 80 hours in a bi-weekly pay period.

(2) Flexible Work Schedules. The Parties will establish Flexible hours--surrounding core hours in accordance with law and regulation.

(3) Flexi-Place

(4) Credit Hours. Credit hours means those hours within a flexible work schedule that an employee elects to work in excess of his or her basic work requirement so as to vary the length of a workweek or workday.

e. No employee shall be required to be on a compressed work schedule and any employee may elect to remain on a regular [5] day per week, [8] hour per day schedule. An employee who desires to change an election to be placed on or off an AWS must notify his or her supervisor [1]-week in advance of the desired date for the requested change.

This proposal sets forth the available forms of AWS in order to prevent the Employer from limiting the options, and reflects the fact that "AWS is a fully negotiable matter." The widest range of options possible is desirable on a large base like Travis, where "[t]here are a thousand different people that work in a thousand different work places." The Employer’s proposal, on the other hand, seeks to limit AWS in general and negotiations in particular because "upper level management at Travis AFB has clearly not embraced AWS." As for flexible schedules, and credit hour programs, the Union seeks to maintain what it has, and to leave open the possibility of future negotiations on additional flexible schedules. During term negotiations, the Union sought to negotiate an AWS for at least one department, but management prevented the Union from going forward with those negotiations. The Employer should not now be permitted to prevent the Union from bargaining over this issue simply because term negotiations have ended. Finally, as for flexiplace or telecommuting, the Employer’s placement of this proposal in a separate section is acceptable. The wording of the proposal, however, should "capture the Union’s right to negotiate this new program."

CONCLUSIONS

    Having carefully reviewed the record presented by the parties, we shall order the adoption of the Employer’s proposal to resolve the dispute. In our view, it is superior to the Union’s because it avoids the possibility of continual negotiations over AWS and flexiplace. The Union had the opportunity to propose AWS in additional departments at the installation during the lengthy period of successor CBA negotiations. Similarly, nothing prevented the Union from proposing flexiplace arrangements. The Union’s failure to take advantage of these opportunities indicates a lack of interest among unit employees at this time for these additional options. Moreover, because the parties have agreed to an 18-month reopener clause, the Union will have sufficient time to survey bargaining-unit employees to determine whether AWS and flexiplace negotiations should take place at that time. The Employer’s proposal is also clearer than the Union’s in a number of areas, for example, by not including flexiplace under the heading of an AWS program. In this regard, the Union’s proposal is confusing because it includes definitions of various AWS terms along with a substantive requirement that the Employer "will establish flexible hours." It also erroneously includes flexiplace as an AWS, yet fails to define it, consistent with its other definitions of AWS terms within the proposed section.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following:

1. Lunch Periods

    The parties shall adopt the following wording:

Section 1: The Employer may authorize any change to a lunch period, if mission requirements require such a change. The normal meal break on Travis AFB will be a 30 minute unpaid lunch. An employee may go to his/her supervisor and request a longer lunch period. The meal period shall occur approximately in the middle of the shift. The supervisor may establish staggered meal breaks to ensure coverage.

Section 2: When circumstances justify, the Employer may authorize or continue a paid on the job lunch of up to 20 minutes. When such lunch is authorized, the employees shall spend their on-the-job lunch at or near their workstations. Any 20-minute lunch break that is determined to be in violation of the law or C.F.R. may be discontinued. Nothing shall preclude the Employer from discontinuing paid lunch periods where it no longer sees a need for them.

2. AWS

    The parties shall adopt the Employer’s proposal.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

August 9, 2001

Washington, D.C.

1.In Travis AFB, the FLRA dismissed management’s exceptions to the award of a grievance arbitrator and found that under the parties’ contract provision, the Employer has the capacity to prevent paid lunches from violating law or regulation by ensuring that employees do not leave the worksite during their paid lunches.

2.Carswell allows the Panel to resolve duty-to-bargain issues raised in impasse proceedings where the FLRA previously has found a “substantively identical” proposal negotiable; Bureau of Reclamation allows such resolution even where an employer’s negotiability arguments are different from those previously addressed by the FLRA.

3.The Employer also raises what appears to be a jurisdictional issue with respect to the Union’s wording on paid lunch periods, which reflects the provision in the expired agreement. Given our decision on the merits of the paid lunch portion of the parties’ dispute, it is unnecessary for us to address the jurisdictional question.