In the Matter of DEPARTMENT OF INTERIOR NATIONAL PARK SERVICE INDEPENDENCE NATIONAL HISTORICAL PARK PHILADELPHIA, PENNSYLVANIA	Case No. 99 FSIP 112
and LOCAL 2058, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

 

ARBITRATOR'S OPINION AND DECISION

    Local 2058, 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 Interior, National Park Service (NPS), Independence National Historical Park, Philadelphia, Pennsylvania (Employer). After investigating the request for assistance, which concerns the Employer's decision to change the hours of work for employees assigned to the Thaddeus Kosciuszko National Memorial (or K House),⁽¹⁾ the Panel directed the parties to submit the matter to the undersigned for mediation-arbitration. Accordingly, on August 19, 1999, attempts were made to mediate the dispute. When those efforts failed to result in a settlement, a brief hearing was conducted during which the parties presented their final offers and supporting evidence and arguments. The parties also submitted post-hearing briefs on the issue at impasse. In reaching this decision, I have considered the entire record.⁽²⁾

BACKGROUND

    The Employer is responsible for preserving and protecting the Independence National Historic sites for the enjoyment of visitors; these sites include Independence Hall and the Liberty Bell. The Union represents approximately 150 bargaining-unit employees who are assigned to one of five divisions; they work as grounds keepers, painters, electricians, custodians, museum curators, public administrators, secretaries, dispatchers, law enforcement rangers, park rangers, and technicians, at grades GS-3 through -11 and WG-1 through -11. The parties’ collective-bargaining agreement (CBA) is due to expire on October 20, 2001.

ISSUE AT IMPASSE

    The parties essentially disagree over what the tour of duty for employees assigned to the K House should be, including lunch and rest periods.

POSITIONS OF THE PARTIES⁽³⁾

1. The Employer's Position

    The Employer proposes to change the current tour of duty for employees assigned at the K House "to 9:15 a.m. until 5:15 p.m., with the site open to the public continuously from 10 a.m. until 5 p.m." The morning break would be scheduled at 9:40 a.m., and employees would "be expected to vary their paid [½ hour] lunch times to coincide with visitation patterns." The building also would be closed for 15 minutes sometime between 3 and 3:30 p.m. "for their afternoon break based on visitation patterns."

    Altering the current hours of operation at the K House "is necessary in order to better serve the visiting public." The practice of closing the site for an hour at approximately 1 p.m. to permit employees to take both their unpaid ½-hour lunch and their two 15-minute breaks also should be eliminated because it "deprives visitors of the opportunity to tour the memorial or inconveniences them by having to wait up to 1 hour to gain admittance." In this regard, midday closure occurs during the busiest time of the day, since visitors are "much more likely to visit in the early afternoon as compared to early morning." Moreover, most visitors do not discover the closure until after they arrive at the site. With few, if any, other museums in the immediate area, visitors simply leave the area. Midday closing times also tend to fluctuate by as much as 20 minutes because visitors arriving just before 1 p.m. are permitted to tour the exhibits at their own pace. When this happens, the ranger on duty closes the K House for an hour after the visitor leaves.

    The changes being proposed, including the implementation of a ½-hour reduction in the tour of duty offset by a ½-hour paid lunch period, are "covered by" the parties' CBA, and not prohibited by its provisions or those of a separate Memorandum of Agreement concerning the operation of the K House. The adoption of its proposal would also be consistent with the practice at every other building within the Independence National Historical Park, none of which "close their doors to visitors and reopen later in the day." Finally, the Employer has negotiated with the Union "in good faith on the appropriate arrangements for employees who would be affected by this change." It should be noted in this connection that "the overwhelming majority of bargaining-unit employees are not affected by this change;" it "will only affect any employee assigned" to the K House, "and only that employee on any given day."

2. The Union's Position

    The Union's final offer, contained in a written proposal dated April 17, 1999, basically would maintain the current starting and ending times of 8:45 a.m. and 5:15 p.m., respectively, and require employees to receive a ½-hour unpaid lunch period at noon. The 15-minute morning rest period would be taken before 10 a.m., and the afternoon 15-minute rest period would occur "as visitation allows." Its proposal also incorporates "existing practices for closing the building while the single employee is on break or at lunch." In the alternative, the Union proposes that the status quo be maintained, whereby employees are permitted to append their paid rest periods to their ½-hour unpaid lunch period, so that the K House is closed to visitors from 1 to 2 p.m. The Union prefers the latter approach because "it is the most efficient way to preserve needed and negotiated breaks in the negotiated work day at the K House."

    Although the Employer has not raised any legal questions in this case, "proposals for scheduling paid and unpaid breaks are negotiable." Under relevant law,⁽⁴⁾ agencies may permit unpaid breaks of up to 1 hour a day, and under relevant regulations,⁽⁵⁾ paid breaks of up to 20 minutes in duration. Neither authority prevents the addition of an unpaid, non-duty rest period to a compensated rest period.⁽⁶⁾ The Federal Labor Relations Authority (FLRA) has also held that a decision to change bargaining-unit employees' starting and quitting times is negotiable unless an agency demonstrates that the change is an exercise of management's right to determine the number, types, and grades of employees or positions assigned to a work project or tour of duty, under section 7106(b)(1) of the Statute.⁽⁷⁾ The Union's proposals are not negotiable only at the election of the Employer, therefore, because they do not restrict in any way determinations regarding the number of employees assigned to its historical sites. Specifically with respect to its alternative proposal, the Union is unable to locate "any provision in law, Government-wide regulation, current FLRA case law or the existing contract provision that would prohibit combining the ½-hour unpaid lunch period with two paid 15-minute breaks for a 1-hour lunch period in an 8½-hour workday."

    The benefits to employees of having a bona fide lunch period during the 8-hour work day are significant. Such a break is "physically and mentally desirable, especially considering the isolation of the K House on most days." Because the building is closed during the lunch period, employees can "prepare or obtain and eat their lunch free from distraction." They also need not concern themselves about monitoring visitors while they are in other parts of the building, either preparing meals or cleaning up. Personal business can be conducted "during the normal work hours of most business places," and employees can continue to car pool with others who have the same starting and quitting times. In this regard, "no other employees begin their work shift at 9:15 a.m.," as the Employer is proposing. Under the Union's proposals, "overtime is minimized," and record-keeping for payroll and leave purposes is simplified, given that "all employees who are normally assigned to interpretive/ranger duties work the same schedule."

    The Employer's proposal should be rejected, among other reasons, because there have been "virtually no visitor complaints about the site being closed for breaks or lunches in the last several years." Visitation is not as heavy at the K House as at other locations the Employer services, which is why it is already closed on Mondays and Tuesdays for 7 months of the year; visitation patterns also are "erratic." Moreover, the Employer expects employees to eat discretely at the lectern at the front door, but this would be "impossible" if visitors walked in on the ranger in "mid chew." The employee would also have difficulty explaining why he or she is eating or drinking in the public areas of the building while the public is forbidden from doing so. Finally, the Employer has never addressed how employees are expected to use the lavatory facilities in the basement, or the microwave and refrigerator on the 3rd floor, without leaving the front desk and sales area they are required to cover.

CONCLUSION

    Having carefully considered the arguments and evidence presented by the parties in this case, I am persuaded that, on balance, the Employer's proposal provides the better basis for resolving the dispute.⁽⁸⁾ In analyzing the strengths and weaknesses of their respective positions, I turn first to an assessment of the merits of the Employer's argument that the current hours of operation at the K House have had a negative impact on management's ability to perform its mission. Admittedly, other than arguing that closing the facility prevents visitors from touring the memorial for a 1-hour period during the middle of the day, there is little evidence in the record of visitor complaints. Clearly, one would have to conclude that management has failed to make a strong case for the change it is proposing.

    It is also necessary, however, to assess the merits of the Union's arguments that changing the status quo would have an adverse affect on employees. In this regard, the Union's case against the change appears to be even weaker than the Employer's case in favor of it. A number of the drawbacks it cites are really potential adverse affects on management which, presumably, the Employer has decided to accept as part of its decision to keep the K House open continuously during the day.⁽⁹⁾ In my view, even the most genuine concerns the Union raises, such as interference with employees' existing car pool arrangements and their inability to continue to conduct personal business during the day, are overstated, particularly in light of the fact that no employee normally is assigned to the K House more than 1 day per week.⁽¹⁰⁾ Finally, it is my impression that because of the relatively low visitation rates, one of the primary reasons employees would like to maintain the status quo is to break up the monotony and avoid the boredom associated with the assignment. If accurate, this is insufficient to justify preventing even minor improvements in the level of service that the NPS provides to visitors which, after all, lies at the heart of its mission.⁽¹¹⁾ Accordingly, I shall order the adoption of the Employer's proposal.

DECISION

    The parties shall adopt the Employer's proposal.

 

H. Joseph Schimansky

Arbitrator

October 8, 1999

Washington, D.C.

1.A lone park ranger is assigned to the K House on any given day. From June through October, the K House is open 7 days per week, and seven employees (five permanent and two seasonal) rotate through the assignment. From November through May, the K House is open Wednesday through Sunday. On other days, these employees work 16 blocks away at the Edgar Allen Poe National Historic site. Regardless of the time of year, daily visitation hours currently are from 10 a.m. to 5 p.m. Each day, from 1 to 2 p.m., the K House is closed to visitors while the park ranger is at lunch.

2.Although the proceeding was conducted at a different location, I also toured the K House with the parties on the morning of August 19.

3.In its post-hearing brief, the Employer requests that the issue at impasse be resolved in favor of its being permitted to impose its changes as "described in our letter of April 29, 1999. Should that not be possible, we ask you to permit us to implement our final proposal," as set forth below. The record in this case, however, does not include a copy of the April 29 letter referred to by the Employer. For this reason, the undersigned considers the wording set forth below, which was the proposal presented at the conclusion of the August 19 hearing (and also included in its post-hearing brief), as the Employer's final offer.

4.5 U.S.C. 6101(a)(3)(F).

5.5 C.F.R. 5551.411(b).

6.The Union cites National Association of Government Employees, Local R1-109 and Veterans Administration, Veterans Administration Medical Center, Newington, Connecticut, 37 FLRA 448 (1990), American Federation of Government Employees, Local 1940 and U.S. Department of Agriculture, Agricultural Research Service, Plum Island Animal Disease Center, 37 FLRA 1059 (1990), and U.S. Department of Defense, Fort Bragg Dependents Schools, Fort Bragg, North Carolina and Fort Bragg Association of Educators, OEA/NEA, 49 FLRA 333 (1994), in support of these statements.

7.In this connection, the Union refers to International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347 (1988).

8.With respect to the negotiability of the Union's proposals, it was the undersigned, and not the Employer, who raised the question during the mediation-arbitration proceeding. This is because, under the Statute, decisions by interest arbitrators and the Panel are subject to disapproval by agency heads if the terms they impose are illegal. Understandably, in its post-hearing brief the Union only cites FLRA decisions which appear favorable to its position. It has not identified any previous cases, however, where "substantively identical" proposals were found to be within the duty to bargain, the standard that the FLRA requires interest arbitrators and the Panel to apply when assessing duty-to-bargain questions in the course of resolving an impasse. Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988). After extensively researching FLRA decisions on a variety of topics relating to the Union's proposals, I am still uncertain that they encompass mandatory subjects of bargaining. Given my decision to adopt the Employer's proposal, however, it is unnecessary to resolve such questions.

9.These include the impact of the change on overtime and record keeping, the contradiction between employees' consumption of food and beverages in public areas of the K House while visitors are forbidden from doing so, and coverage of the front desk while employees are using the lavatory in the basement or preparing food in the attic. In addition, the Union's acknowledgment that visitation rates are low is hard to reconcile with its argument concerning the desirability of a distraction-free lunch period. While it is impossible to predict visitation patterns with any accuracy, given past history, many of the paid-lunch periods that employees will have are likely to be uninterrupted.

10.It is curious to note that the parties' dispute does not fit the profile of previous cases before the Panel, where unions have proposed paid-lunch periods because they shorten the workday and may lead to the payment of overtime.

11."The National Park Service is dedicated to conserving unimpaired the natural and cultural resources and values of the National Park System for the enjoyment, education, and inspiration of this and future generations." The United States Government Manual 1999-2000, Office of the Federal Register/National Archives and Records Administration (Revised June 1, 1999), p. 309.