[ v16 p335 ]
16:0335(51)CA
The decision of the Authority follows:
16 FLRA No. 51
UNITED STATES AIR FORCE
2750th AIR BASE WING HEADQUARTERS
AIR FORCE LOGISTICS COMMAND
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1138
Charging Party
Case No. 5-CA-20017
DECISION AND ORDER
The Administrative Law Judge issued the attached Decision in the
above-entitled proceeding, finding that the Respondent had not engaged
in the unfair labor practices alleged in the complaint, and recommending
that the complaint be dismissed in its entirety. Thereafter, the
General Counsel filed exceptions to the Judge's Decision. The
Respondent filed exceptions to the Judge's Decision and an opposition to
the General Counsel's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Labor-Management Relations Statute (the
Statute), the Authority has reviewed the rulings of the Judge made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. Upon consideration of the Judge's Decision
and the entire record, the Authority hereby adopts the Judge's findings,
conclusions and recommended Order. Thus, in agreement with the Judge
and for the reasons set forth in his Decision, the Authority concludes
that in the circumstances of this case procedures for employee use of
health club facilities do not constitute a condition of employment
within the meaning of section 7103(a)(14) of the Statute. /1/ See also
International Organization of Masters, Mates and Pilots and Panama Canal
Commission, 13 FLRA No. 87 (1983) (Union Proposal 12) and American
Federation of Government Employees, Local 225 and U.S. Army Armament
Research and Development Command, Dover, New Jersey, 11 FLRA No. 108
(1983) issued subsequent to the Judge's Decision herein. Accordingly,
the Respondent was under no obligation to afford the Union an
opportunity to bargain over the matter. Therefore, the Respondent's
refusal to do so cannot be a violation of the Statute.
ORDER
IT IS ORDERED that the complaint in Case No. 5-CA-20017 be, and it
hereby is, dismissed.
Issued, Washington, D.C., October 31, 1984.
Henry B. Frazier III, Acting
Chairman
Ronald W. Haughton, Member
-------------------- ALJ$ DECISION FOLLOWS --------------------
UNITED STATES AIR FORCE,
2750TH AIR BASE WING HEADQUARTERS,
AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO
Respondent
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1138, AFL-CIO
Charging Party
Case No. 5-CA-20017
Major Roger T. McNamara and
Captain David W. Kerber
For the Respondent
Judith A. Ramey, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
DECISION
Statement of the Case
This is a proceeding under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
7101, et seq.
Upon an unfair labor practice charge filed by the American Federation
of Government Employees, Local 1138, AFL-CIO (the Union herein), on
October 13, 1981 against the United States Air Force, 2750th Air Base
Wing Headquarters, Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio (Respondent herein), the General Counsel of the
Authority, by the Regional Director for Region 5, issued a Complaint and
Notice of Hearing alleging Respondent refused to negotiate with the
Union regarding procedures for the use and impact and implementation of
a new health club at Respondent's facility.
A hearing on the Complaint was held on January 27, 1982 in Dayton,
Ohio at which time Respondent and the General Counsel were represented
and afforded full opportunity to adduce evidence, call, examine, and
cross-examine witnesses and argue orally. Briefs were filed by
Respondent and the General Counsel and have been carefully considered.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor, and from my evaluation of the evidence, I
make the following:
Findings of Fact
At all time material herein the Union has been the exclusive
collective bargaining representative of approximately 4,700 of
Respondent's employees located at Wright-Patterson Air Force Base. For
many years Respondent has operated the AFLC Health Club located on the
Base in Building 262. /2/ This recreational facility is a
non-appropriated fund instrumentality and managed by Respondent's
Morale, Welfare and Recreation Division. Its operation is controlled by
various Air Force regulations including AFR 215-1. The Air Force
sponsors such programs as the Health Club to provide a wide variety of
off-duty leisure time activities to military and civilian personnel for
recreation, morale and welfare purposes, the goal being to produce a
"better employee" in the case of civilians. Under the current AFR
215-1, /3/ priority for program eligibility and use is given first to
active and retired military personnel and then to Department of Defense
civilian employees assigned to the Base. Thus, if membership vacancies
in the Health Club were still available after military personnel were
accommodated, civilians would then be allowed to join.
From the time of its inception until approximately 1970 the Health
Club was opened only to male military personnel. Around 1970 membership
was opened to higher graded male civilian employees, and around 1978
lower graded male civilian employees were allowed to join. In the
spring of 1980 employees petitioned to have the Health Club opened to
females as well as males. Based upon this expression of interest
Colonel Rigney, the Base Commander, decided to construct a new Health
Club which could be utilized by both men and women. The new facility
was to be located approximately 50 yards down a hall from the existing
Health Club in the same building. After funding was arranged, planning
commenced and construction was scheduled to begin in February 1981 and
completed in May of that year. The project was delayed for various
reasons and the construction contract was ultimately awarded in April
1981. Construction began in mid June 1981 and it was estimated that the
new Health Club would be completed the following September.
Meanwhile, by letter dated February 24, 1981, the Union notified
Colonel Rigney that although it was aware facilities for females were
planned for a target completion date of May, nevertheless, the same
privileges accorded male employees should immediately be provided to
female employees with regard to using the existing Health Club. The
Union requested a meeting "to promptly end this matter of discrimination
against . . . female employees."
Colonel Rigney met with the Union on March 13, 1981. The Union
suggested that the facility be available for use to women on a rotating
basis with men. /4/ Colonel Rigney declined to accept the Union's
suggestion due to "inadequate sanitary provisions" and notified the
Union that the new Health Club was expected to be completed by the end
of June at which time men and women would have equal Health Club access.
Thereupon, on April 6, 1981 the Union filed a grievance under the
parties' collective bargaining agreement concerning Respondent's refusal
to provide female employees with immediate access to the Health Club.
The grievance on that issue was denied and the grievance is still
unresolved. /5/
Construction of the new Health Club began in June 1981. The Union
observed its progress and, pursuant to a request under the Freedom of
Information Act, received blue prints of its layout. In September 1981
it was apparent that construction on the Health Club was nearing
completion. By letter dated September 24 the Union demanded that
Respondent " . . . bargain on the procedures for using the facilities
and on appropriate equipment for a co-ed facility." /5/ By this date
construction on the Health Club was approximately 93 percent complete.
In a letter to the Union dated September 30, 1981 Respondent refused
to bargain with the Union contending that the request to bargain was
"untimely filed." Respondent's letter of refusal indicated that its
decision to construct the new Health Club had already been implemented
and further stated: "Since you were aware of management's plans and did
not request bargaining during the months prior to the commencement of
construction, you have constructively waived your right to bargain." The
letter concluded by informing the Union: "Any comments your local would
wish to present will be considered. However, it is too late to change
management's plans now."
Construction of the Health Club was completed on October 8, 1981 and
the club officially opened on October 26. The facility has separate
locker, shower, and sauna rooms for males and females, and a common
exercise room containing various equipment including a Universal machine
and an exercise bicycle. /7/ The Health Club currently has 65 female
members and 185 male members, 40 to 50 percent of whom are civilian
employees, and locker accommodations for 110 females and 216 males. The
rules governing the operation of the facility, including the four dollar
a month membership fee, are the same as those which were in effect for
the old club when it was in existence. The facility remains open 24
hours a day although the vast majority of its use occurs during lunch
hours.
Counsel for the General Counsel called two employee witnesses to
testify regarding use and benefits from their Health Club membership.
One witness testified she visited the facility one to two days a week
during her lunch hour, at which time she would run in place, use the
exercise equipment, sauna, and shower. She testified that she felt more
"alert" during the afternoon on the days she frequented the club.
Membership in private, off Base health clubs is available but
substantially more expensive and located where use during lunch hours
would not be feasible.
The second witness testified he has been a member of both the prior
Health Club and the new facility for a total of approximately three
years. He uses the Health Club an average of three days a week in
connection with a running program usually engaged in after work. He
uses the facility to change his clothing and perform some calisthenics.
Thereafter, he leaves the building and runs three to ten miles after
which he returns to the Health Club, performs more calisthenics,
showers, changes back to street clothes and goes home. This witness has
been running for about five years and testified that since he began
running he feels "better", has more energy and stamina, and is more
alert. In addition, his blood pressure has improved substantially. He
further testified that due to the convenience and safety in carrying out
his running program on the Base, the Health Club offered a distinct
advantage to him. However, even in the absence of the Health Club
facilities he would nevertheless continue his running program.
Discussion and Conclusions
Respondent contends that the Union's request to bargain was untimely
and, in any event, Respondent was not required to bargain on matters
concerning the Health Club since such matters are not "conditions of
employment" within the meaning of the Statute. /8/
I reject Respondent's contention that the Union bargaining request of
September 24, 1981 was untimely. Granted, the Union perhaps made its
bargaining demand rather "late in the day" to obligate Respondent to
negotiate on the full scope of matters which would otherwise be
bargainable had the demand been made earlier. /9/ However, the request,
following the usual practice, was non-specific, merely requesting
bargaining on "procedures for using the facilities and on appropriate
equipment . . . ." Accordingly, Respondent could not have known if the
Union would have submitted proposals which would encompass matters too
far committed to permit deviation or would have somehow impermissibly
delayed the opening of the Health Club. The Health Club did not
formally open until a month after the Union's demand.
In my view Respondent was obliged to negotiate with the Union to
whatever extend discretion to act remained at the time of the demand.
/10/ Indeed, the Union, if afforded the opportunity, might well have
made proposals which were easily accommodated and mutually beneficial to
all concerned. However, Respondent never provided itself with the
opportunity to make such judgments. In these circumstances I conclude
the Union's bargaining request of September 24, 1981 was not untimely.
/11/
Turning now to Respondent's contention that the Health Club did not
constitute a "condition of employment" under the Statute, Respondent
relies primarily upon the decision of the Authority in International
Association of Fire Fighters, AFL-CIO, Local F-116 and Department of the
Air Force, Vandenberg, Air Force Base, California, 7 FLRA 123 (1981).
That case involved a negotiability determination of a union proposal to
grant off-duty personnel and their dependents hunting and fishing
recreation rights on Vandenberg Air Force Base. In declaring the
Union's proposal to be not within the duty to bargain under the Statute,
the Authority held:
"On its face, the disputed proposal in the present case does
not concern personnel policies, practices, or matters affecting
working conditions of unit employees. Similarly, as to the effect
of the proposal, no relationship between the recreational
activities of off-duty employees and their dependents and
employment as firefighters at the Base is adverted to by the Union
or is otherwise apparent. That is, nothing in the proposal itself
or elsewhere in the record before the Authority indicates that
allowing employees and their dependents to hunt and fish at the
Base would relate to conditions of employment. In particular, the
Union has not provided the Authority with any explanation as to
the intent of the proposal which would support a finding that such
relationship exists.
"Therefore, in the absence of any demonstration in the record
of a direct relationship between the Union's proposal and unit
employees' work situations or employment relationships, the
Authority must find that the proposal does not concern matters
which are 'conditions of employment' within the meaning of section
7103(a)(14) of the Statute". (Footnotes omitted).
The General Counsel contends that matters concerning the Health Club
are negotiable, relying in substantial part upon the Authority's
decision in American Federation of Government Employees, AFL-CIO and Air
Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
604 (1980). In that case the Authority held negotiable a union's
proposal that the employer provide space and facilities for self
supporting day care facilities, operated by the union and available to
all Base employees. In so finding, the Authority stated:
" . . . the availability of day care facilities affects the
work situation and employment relationship in a variety of
significant ways. For example, the existence and availability of
such facilities can be determinative of whether an individual will
be able to accept a job with an employer and of whether an
employee will be able to continue employment with an employer.
Thus, in addition to being an asset to management in recruiting
and keeping a stable workforce, such facilities can be a decisive
factor in the maintenance by unit employees of an employment
relationship. Furthermore, problems with child care arrangements
can result in employees tardiness and absenteeism. Thus, they
have a detrimental effect on employee use of leave and on employee
productivity, resulting in lowered morale and lessened ability to
perform satisfactorily in relation to established expectations.
It is also noted that, because of the increased number of families
in which both parents work, as well as the necessity for single
parents to work, the significance of day care facilities to the
employment relationship has increased over recent years.
"For the foregoing reasons, it is concluded that use of agency
space for day care facilities is a condition of employment. It is
directly related to the personnel policies, practices and matters
affecting working conditions of unit employees and is within the
scope of bargaining under . . . the Statute". (Footnotes
omitted).
Thus, the General Counsel takes the position that the facts of the
case herein support a finding of a "direct relationship" between the
Health Club and matters affecting working conditions and Respondent
argues that the facts herein do not establish the requisite "direct
relationship" to support a finding of a condition of employment, without
which there is no obligation to bargain.
In my view the Health Club is more closely identifiable with hunting
and fishing recreation rights than with day care facilities. Both are
primarily recreational in nature and, as with hunting and fishing
facilities, the Health Club does not, "on its face", concern personnel
policies, practices, or matters affecting working conditions. Nor is
there "otherwise apparent" any relationship between the health club
activities of off-duty employees and employment that was not "otherwise
apparent" in the Vandenberg case. In both cases it is obvious employees
would receive something of monetary value and convenience in being
accorded recreational rights from the employer. In both cases it is
obvious that improved morale and perhaps benefits to employees' mental
and/or physical well being, normally associated with recreational
pursuits in general, would inure. The differences between health club
rights and the hunting and fishing rights seems to be primarily in the
indoor verses outdoor nature of the activity; a more physical verses a
more sedentary activity; and the availability of one form of recreation
during lunch hours as opposed to use before and after work and days off.
The standard used by the Authority in the cases cited herein in
determining whether an activity is a condition of employment is whether
there is a "direct relationship" between the activity being considered
and unit employees' work situations or employment relationships. I find
no such "direct relationship" within the meaning of the Authority's
decisions in this area exists in the case herein. Even if some
relationship may exist, it will not suffice to establish a duty to
bargain on the matter if that relationship is merely remote and
speculative. /12/ Accordingly, although the use of the Health Club is
an incident of employment in that it arises out of the employment
relationship and bestows some benefit to the employer and employees, I
am constrained to conclude that the matter of the Health Club herein
does not constitute a condition of employment within the meaning of the
Statute.
One difference between the Vandenberg case and the case herein is in
Vandenberg employees had apparently never been permitted hunting and
fishing privileges, while in the case herein some employees have used
Respondent's health club facilities for a number of years and continue
to do so. However, I do not find this difference to be controlling.
Under Executive Order 11491, as amended, it had been long held that
the obligation to bargain on matters affecting working conditions under
section 11(a) of the Order was intended to encompass only those matters
which "materially affect, and have a substantial impact on personnel
policies, practices, and general working conditions." /13/ That approach
was followed regardless of whether a unilateral change of a practice
occurred /14/ or whether the employer had unilaterally established a
practice. /15/ The Authority adopted this "substantial impact" rule in
Office of Program Operations, Field Operations, Social Security
Administration, San Francisco Region, 5 FLRA No. 45 (1981), a case
arising under the Statute. Since I perceive no significant difference
between the aforementioned "direct relationship" test and the
"substantial impact" rule as applied to the instant case, I conclude
that the status of employee use of the Health Club herein is not reason
to depart from my prior conclusion that the matter of the Health Club
does not constitute a condition of employment within the meaning of the
Statute.
Therefore, in view of the entire foregoing it is recommended that the
Federal Service Labor Relations Authority issue the following Order
pursuant to 5 C.F.R. 2424.29(c):
ORDER
IT IS HEREBY ORDERED that the Complaint in Case No. 5-CA-20017 be,
and hereby is, dismissed.
SALVATORE J. ARRIGO
Administrative Law Judge
Dated: August 12, 1982
Washington, D.C.
--------------- FOOTNOTES$ ---------------
/1/ Section 7103(a)(14) provides, in pertinent part:
Sec. 7103. Definitions; application
(a) For the purpose of this chapter--
* * * *
(14) "conditions of employment" means personnel policies,
practices, and matters, whether established by rule, regulations
or otherwise, affecting working conditions . . . (.)
/2/ Several other similar clubs are located on the Base, none of
which are concerned herein.
/3/ It is undisclosed whether the same regulation was in effect since
the Health Club was first opened.
/4/ The Health Club at the time had only shower, locker, and sanitary
facilities available for men.
/5/ Matters concerning the grievance are not material to a resolution
of the issues herein.
/6/ It was the practice of the Union to first submit a general
request to bargain which was then followed by specific proposals.
/7/ The new club uses virtually the same equipment as that found in
the old club except for "one or two" new replacement pieces.
/8/ Section 7103(a)(14) of the Statute provides: "(14) 'conditions
of employment' means personnel policies, practices, and matters, whether
established by rule, regulation, or otherwise, affecting working
conditions . . . "
/9/ See generally Division of Military and Naval Affairs, State of
New York, Albany, New York, 8 FLRA 307 at 320 (1982).
/10/ Cf. Internal Revenue Service, Chicago, Illinois, 9 FLRA No. 73
at p. 4 (1982).
/11/ I also conclude that Respondent's statement that any comments
the Union presented would be considered did not, in the circumstances
herein, indicate an offer to bargain as required by the Statute.
/12/ National Association of Air Traffic Specialists and Department
of Transportation, Federal Aviation Administration, 6 FLRA 588 at 593
(1981).
/13/ Department of Defense, Air National Guard, Texas Air National
Guard, Camp Mabry, Austin, Texas, 6 A/SLMR 591 (1976).
/14/ Id.; Social Security Administration, Bureau of Hearings and
Appeals, 2 FLRA 238 (1979).
/15/ Department of the Navy, Naval Communication Area, Master Station
Eastpac, Honolulu, 8 A/SLMR 504 (1978).