Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine, Chicago, Illinois and Local 17, NAAE, 01 FSIP 53 FLRAfsip

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF AGRICULTURE ANIMAL AND PLANT HEALTH INSPECTION SERVICE PLANT PROTECTION AND QUARANTINE CHICAGO, ILLINOIS
and LOCAL 17 NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES	Case No. 01 FSIP 53

DECISION AND ORDER

The Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine (PPQ), Chicago, Illinois (Employer) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and Local 17, National Association of Agriculture Employees (NAAE or Union).

After investigation of the request for assistance, which concerns the Employer’s decision to implement a 30-minute unpaid meal period affecting PPQ officers on tours of duty starting at 11:30 a.m. and 12:30 p.m., respectively, the Panel directed the parties to participate in an informal conference with a Panel representative for the purpose of resolving the outstanding issues. The parties were advised that if no settlement was reached, the representative would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

Pursuant to this procedural determination, the undersigned met with the parties on April 26, 2001, at the Ramada Plaza Airport Hotel, near O’Hare International Airport, in Chicago, Illinois. Although the parties were able to resolve eight of the nine issues originally contained in the Employer’s request for assistance, they remain at impasse concerning when the meal periods would be scheduled, and whether employees should be permitted to trade meal periods. The parties were permitted to submit brief statements in support of the final offers they provided at the conclusion of the informal conference. I have reported to the Panel, and it has now considered the entire record.

BACKGROUND

The Employer’s mission is to prevent the introduction of foreign plant and animal pests into the United States. To accomplish this mission, PPQ officers and technicians inspect arriving international aircraft, passenger baggage, and cargo primarily at O’Hare International Airport. The Union represents approximately 31 employees at the local level -- 26 PPQ officers (GS-7/9/11) and 5 technicians (GS-4/5) -- who are part of a nationwide bargaining unit represented by the NAAE. The parties are governed by the terms of the master agreement between PPQ and NAAE, which is currently being renegotiated; the prior contract remains in effect at the present time.

ISSUES

The parties disagree over the band of time during which the meal periods would be scheduled, and whether employees should be permitted to trade meal periods.

POSITIONS OF THE PARTIES

1. The Union’s Position

The Union proposes that:

To the maximum extent possible consistent with work unit staffing requirements and the exigencies of the day, the Employer shall schedule all unpaid meal periods to occur during the middle 2 hours of the employee’s tour of duty, unless the affected employee requests otherwise. The Employer shall permit trades for the lunch period among the employees assigned to a particular station.

Preliminarily, the Employer is attempting to change a 35-year-old practice in Chicago "where passenger clearance tours have had no unpaid meal break." In doing so, it "has failed to demonstrate that the current system is not working." In the few tours that have had unpaid meal breaks, the breaks have been "scheduled in advance, scheduled in the precise middle or, if not the middle, at least in the middle 2 hours of the shifts." Even during the current foot-and-mouth disease crisis, all the personnel on these tours "have performed work in the passenger clearance area and have done so without a change in their scheduled mid-shift unpaid lunch tradition."

Unlike the Employer’s proposal, the Union’s would "lend predictability" to employees’ eating and "give their body clocks some consistency." In this regard, "before an employee shows up for work, he or she is entitled to know within a reasonably narrow time frame when he or she will be able to eat next and thus whether and when to eat before arriving at work." Its proposal is also "most fair and reasonable to all concerned" because it gives management the flexibility to change scheduled lunches in emergencies "to deal with unforeseen conditions." Furthermore, the Union’s approach is supported by "an arbitration decision for similarly-situated PPQ officers in Philadelphia." In that case,⁽¹⁾ a "tentative arbitrator opinion" was issued on April 21, 2001, which "contemplates a 2-hour window during 10-hour shifts, swapping of meal periods, and procedures for unusual circumstances." The only difference between its proposal and the wording recommended by the arbitrator in the Philadelphia case is the Union’s concept "of employees being able to request a meal period outside of the 2-hour window." Adoption of the concept would benefit the Employer by spreading the strain on difficult staffing days more thinly over the entire day, and would benefit employees by enabling them to exercise more control over their day. Moreover, such requests "could be implemented only with the consent of the supervisor." Finally, the Panel should disregard the Employer’s 11^th hour introduction at the informal conference of its intent to separate employees into "teams," and its view that this would require every member of a particular team "to take his/her period at one time." Even using its "vague concept of three teams," lunch still could be accommodated in succession within the 2-hour time frame.

2. The Employer’s Position

The Employer’s proposal is as follows:

The Employer shall make every effort to schedule unpaid meal periods to occur during the middle 2 to 3 hours of employees’ tours of duty, workload permitting. If workload/mission requirements do not permit the above, unpaid meal periods will be scheduled in accordance with AD 402.1 (9/22/82) and HRDG, Chapter 4610 (8/92) and will begin no sooner than 2 hours after reporting for duty and end no later than 6 hours after the report time.⁽²⁾

Its proposal would ensure that management has the flexibility to schedule the unpaid meal period over the middle 4 hours of the shift. This is "imperative" if enforcement activities are to be maintained "at optimum levels," and the interception of contraband is to continue "without compromise." With respect to the trading of meal periods, the parties already have agreed to wording which accommodates employees who require special arrangements for eating food at a particular time for medical or religious reasons. Similarly, employee requests to trade meal periods "on rare occasions for good reason" also would be accommodated.

As to the Union’s proposal, its reference to "work unit staffing requirements" falls under section 7106(b)(1) of the Statute and is "inappropriate since the Agency has not elected to negotiate on the numbers, types, and grades of employees." In addition, limiting the scheduling of unpaid meal periods to an "extremely narrow 2-hour time band" is unreasonable because it would "force management to remove employees from the inspection area during peak flight times, resulting in an adverse impact on the efficiency and effectiveness of the Agency’s mission." Moreover, the Union’s argument that its proposal would allow employees to take their meal periods on a consistent basis during the traditional dinner hour "would make sense if employees currently ate at consistent times." Employees on the affected tours, however, eat during informal breaks which are inconsistent and vary from day to day. Finally, posting of the "daily work schedule/team assignment" must occur prior to the start of afternoon baggage inspection activities, and is complicated by the fact that employees must rotate through various work locations and job responsibilities. The portion of the Union’s proposal which would permit the routine swapping of meal periods, therefore, "would seriously affect the required function of daily assignments, create imbalance of work assignments, and result in disruption and confusion due to continual modifications of the schedule."

CONCLUSIONS

Having reviewed the record in this case, we shall order the adoption of a modified version of the Employer’s proposal to resolve the parties’ dispute. At the outset, we note that the Employer’s current final offer commits management to scheduling employees’ unpaid meal periods during the middle 2 to 3 hours of the affected tours of duty, and that this represents a welcome compromise from the position it took at the end of the informal conference. In our view, the Employer’s proposal, along with additional wording which permits employees occasionally to trade meal periods where unique circumstances are demonstrated, effectively balances the employees’ interest in having predictable meal periods with management’s interest in ensuring that its mission requirements are met. Our additional wording is also consistent with the Employer’s stated commitment to accommodate employee requests to trade meal periods "on rare occasions for good reason."

Turning to the Union’s proposal, although it states in its post-conference submission that employee requests for meal periods outside its 2-hour window "could be implemented only with the consent of the supervisor," the proposal itself contains no such limitation. Because the Union’s statement of intent is not reflected in the actual wording of the proposal, its adoption at the very least could lead to future disputes between the parties. The last sentence of the proposal also appears to permit the routine trading of meal periods. In the circumstances presented, we believe that this could cause disruptions in the Employer’s daily scheduling requirements that outweigh its benefit to employees. Finally, the Union’s reliance on a private arbitrator’s recommended award in the case in Philadelphia is unpersuasive. Since a copy of the document was not provided, it is unclear how similar the circumstances really are. Moreover, even accepting the Union’s characterization of the award, it appears that the arbitrator’s recommendation is subject to change.

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 § 2471.11(a) of its regulations hereby orders adoption of the following:

The Employer shall make every effort to schedule unpaid meal periods to occur during the middle 2 to 3 hours of employees’ tours of duty, workload permitting. If workload/mission requirements do not permit the above, unpaid meal periods will be scheduled in accordance with AD 402.1 (9/22/82) and HRDG, Chapter 4610 (8/92) and will begin no sooner than 2 hours after reporting for duty and end no later than 6 hours after the report time. In addition to providing appropriate accommodations to employees for medical reasons, occasional trading of meal periods between employees will be permitted where unique circumstances are demonstrated.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

May 23, 2001

Washington, D.C.

1.The Union is referring to another recent request for Panel assistance concerning the issue of unpaid meal periods. In Department of Agriculture, Animal Plant Health Inspection Service, Philadelphia, Pennsylvania and Local 7, NAAE, 00 FSIP 167, filed by the union, the Panel: (1) declined to assert jurisdiction over several union proposals because the employer raised duty-to-bargain questions; and (2) asserted jurisdiction and directed the parties to submit their impasse on the remaining impact-and-implementation proposals to a private arbitrator.

2.In its post-conference submission, the Employer modified the offer it made at the conclusion of the informal conference. Its latest offer is similar to a compromise that was discussed during the informal conference in an attempt to achieve a complete settlement of the dispute.