16:0335(51)CA - Air Force, 2750th Air Base Wing HQ, Air Force Logistics Command, Wright- Patterson AFB, OH and AFGE Local 1138 -- 1984 FLRAdec CA



[ 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 equipme