United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION BAYAMON DISTRICT HATO TEJAS BRANCH OFFICE BAYAMON, PUERTO RICO
and LOCAL 2608, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 94 FSIP 88

 

DECISION AND ORDER

    Local 2608, American Federation of Government Employees, AFL-CIO (Union) 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, 5 U.S.C. § 7119, between it and the Department of Health and Human Services, Social Security Administration (SSA), Bayamon District, Hato Tejas Branch Office, Bayamon, Puerto Rico (Employer).

    After investigation of the request for assistance, the Panel directed the parties to participate in a telephone conference with Staff Associate Gladys M. Hernandez for the purpose of resolving their dispute over an office policy on the consumption of food and beverages in work areas. The parties were advised that if no settlement were reached, Ms. Hernandez would report to the Panel on the status of the dispute, including the parties' final offers, and her 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.

    Ms. Hernandez held a telephone conference with the parties on April 21, 1994. There having been no resolution, she has reported to the Panel on the matter based on the record developed by the parties. The Panel has now considered the entire record.

BACKGROUND

    The Employer is a branch office (BO) in SSA's Bayamon District, which also includes a BO in San Patricio and the district office (DO) in Bayamon. Its mission is to administer retirement, disability, Medicare, and Supplemental Security Income entitlement programs. The bargaining unit consists of 15 GS-3 through -10 employees who work as claims or service representatives, claims development clerks, secretaries, and "stay in schools." They are part of a nationwide consolidated bargaining unit of approximately 48,200 who are covered by a collective-bargaining agreement due to expire in November 1996.

ISSUE AT IMPASSE

    The parties basically disagree over whether employees should be allowed to consume food and beverages in work areas.

 

POSITIONS OF THE PARTIES

1. The Employer's Position

    Under the policy the Employer has implemented and proposes be continued, employees are prohibited from consuming food and beverages in the "main work area" and at workstations.⁽¹⁾ Those with "special dietary" needs or medical conditions, however, may bring the matter to management's attention for "necessary action."⁽²⁾ In addition, it now also proposes to allow employees to take their 15-minute morning and afternoon rest breaks as early as 9:15 a.m. and 2:15 p.m., respectively, the early 45-minute lunch break as early as 11:30 a.m., and the late lunch break beginning at 12:15 p.m.⁽³⁾ Its policy is the "most responsive and reasonable measure" in light of management's responsibility to provide the "optimum upkeep" of Federal property. In this regard, the policy makes it possible for management to comply with 29 C.F.R. § 1910.141(a)(5)(1993), the Occupational Safety and Health Administration (OSHA) regulation which requires Federal agencies "to prevent the harborage of rodents and other varmints in the workplace." The need to continue the policy is now greater because the general work area is infested with ants and the multipurpose room with roaches (for which fumigation has been requested). It also serves to protect computer terminals at employees' workstations from damage that could result from the "spillage of liquids or food," as recommended by SSA's service carrier, International Business Machines. The policy is (1) consistent with an admittedly unwritten General Services Administration (GSA) regulation; (2) "common business practice;" (3) responsive to the "good government standard," and (4) with a few exceptions, being adhered to without objection. While the group and individual grievances recently filed on the matter "constitute protest," this reflects "the Union's and not necessarily the employees' stance on the issue."

      The Union's proposed policy, on the other hand, should not be adopted because, in effect, it revives a practice which was "short lived [January through mid-December 1993] and clearly not in accordance with the established office policy."⁽⁴⁾ Moreover, since eating and drinking take time, it "translates" into giving employees additional breaktime. Finally, whatever the practices or policies are at the DO or other BOs in the Bayamon District, they have "no bearing on the polic[y] of the Hato Tejas Branch Office."

2. The Union's Position

    The Union proposes that employees be allowed "occasionally" to consume (1) "dry snacks such as chips, candy, nuts, donuts, cookies, or other similar items" and (2) "coffee in customary containers, and other liquids in spill-proof containers at their workstations, the private interviewing room, the conference room, and the general work area," but not "while interviewing" members of the public. Also, "unless there is no other suitable place available like the multipurpose room, conference room, and private interviewing room," their consumption of "breakfast and full meals" at their workstations would be prohibited. Finally, the "preparation" of food would be restricted to the multipurpose room. This proposed policy, contrary to the Employer's position, is consistent with the longstanding practice (13 years) in place before the BO's recent relocation. In this regard, the individual acting in the Branch Manager's stead during her 4-month absence in early 1993 "ran the office in a very professional manner" and merely allowed an existing practice to continue. Returning to that practice now would not, as the Employer argues, "affect the health of employees."

    The proposed policy is also consistent with OSHA regulations, specifically, 29 C.F.R. § 1910.141(g)(2), which prohibits the consumption of food and beverages only in toilet rooms or areas exposed to toxic chemicals. The Employer, on the other hand, has been unable to "produce cop[ies]" of the SSA policy and GSA regulation which it contends prohibit employees from consuming food or beverages at their workstations; it alleges their existence simply to "suit . . . [its] own need in detriment to employees." Nor has the Employer provided proof that computers were damaged by spilled food or beverages at any time during the long period employees were permitted to eat and drink at their workstations. With employees drinking beverages other than coffee from spill-proof containers, this is less likely to happen in the future. There is no problem with ants and insects at the new building, nor was there a problem with rodents and roaches in the multipurpose room at the old location, as the Employer contends. Even if there were a problem with ants at the new office, this is not uncommon in Puerto Rico because of the tropical climate. In any event, if the terms of the lease on the cleaning, maintenance, and fumigation of the offices were complied with, there would be no current or future problem with "vermin control," regardless of whether employees eat and drink at their workstations.

    As for the Employer's proposed policy, which was implemented prior to the completion of bargaining, it is inappropriate even with the added provision for widening the time bands for rest and lunch breaks. Employees' discontent with this policy is evidenced by the group and individual grievances which were filed. Such discontent "affects [their] productivity and . . . service to the public." Moreover, because the San Patricio BO and the Bayamon DO permit the consumption of some snacks at workstations,⁽⁵⁾ and employees are frequently detailed from one District office to another, denying Hato Tejas BO employees the same right would "adversely affect the employees . . . hinder their performance, and consequently affect the service to the public."

CONCLUSIONS

    Having evaluated the arguments and evidence presented, we conclude that the Employer's proposal is the more appropriate under the circumstances. Foremost in our view, the length and frequent number of breaks enjoyed by employees throughout the workday should meet their food- and beverage-consumption needs. Also, the exceptions made for those employees with dietary or medical needs provide a reasonable accommodation, as does allowing employees to eat cookies or candies at their workstations on those limited occasions they are brought in by returning vacationers. In addition, we agree with the Employer that its proposal would safeguard the Federally-owned or -leased property (equipment, documents, or real property) for which it is responsible. The Union's proposal, on the other hand, presents the potential for damage to computers from spillage of food or beverages. Given that just a single incident could be costly both in time and money to the Employer and claimants, it would not be prudent to permit employees to eat and drink at their workstations even with the limitations proposed. Overall, the Employer's proposal achieves a better balance of customer service, mission accomplishment, efficiency and quality of work life under the good government standard than does the Union's. Accordingly, we shall order its adoption.

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 pursuant to 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 the following:

    The parties shall adopt the Employer's proposal.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

June 27, 1994

Washington, D.C.

 

1.During the telephone conference, the Employer indicated to the Panel's representative that (1) in practice it is making allowance for the "occasional" candy or cookie when brought in by, e.g., employees returning from vacation, which preserves the "cultural tradition" the Union is fearful of losing; and (2) its policy allows for employees to have "mints (Tic Tacs) and chewing gum" while at their desks.

2.The Employer is allowing employees needing to eat or drink outside of breaks because of a medical condition, e.g., diabetes, a "brief" period of time to do so in the multipurpose room.

3.By practice, employees get two 15-minute rest breaks and a 45-minute lunch break. Currently, employees' rest breaks start at 9:30 a.m. and 2:30 p.m., and early and late lunch breaks at 11:45 a.m. and 12:30 p.m., respectively.

4.Part VI of that policy, originally issued in April 1990, and reissued without changes in November 1992, reads as follows: "Eating and drinking in the work area is not allowed even if an employee is on break or lunch . . . ."

5.We note that documents on record reveal that the San Patricio BO's office policy does not address employees' consumption of food and beverages at their workstations, and the DO's, issued in December 1984, specifically prohibits such consumption (Section V.d., p.3), contrary to the Union's statement that it is "silent" on the matter. Management and union representatives at these offices disagree over whether their respective practice is to allow employees to do so.