36:0418(51)AR - - Army, Aviation Systems Command, St. Louis, MO and NFFE Local 405 - - 1990 FLRAdec AR - - v36 p418
[ v36 p418 ]
The decision of the Authority follows:
36 FLRA No. 51
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE ARMY
AVIATION SYSTEMS COMMAND
ST. LOUIS, MISSOURI
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
July 24, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator Merton C. Bernstein filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator found that the Agency violated Article VII of the parties' negotiated agreement by failing and refusing to negotiate with the Union over the selection and renovation of a building on the Agency's premises for a Fitness Center. To remedy the breach of the agreement, the Arbitrator directed the Agency to immediately advise the General Services Administration (GSA) that the Agency was under the Arbitrator's order to desist from any further action to advance the construction or operation of the Fitness Center until the collective bargaining procedures were exhausted, including the completion of impasse resolution procedures.
For the following reasons, we conclude that the Agency's exceptions fail to establish that the award is deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
In July 1987, the Union President learned that the Agency was considering the establishment and construction of a Fitness Center. Beginning in July 1987, and extending over a period of 17 months, to December 2, 1988, the Union made numerous requests to the Agency for information and negotiations on the proposed Fitness Center. During that time, the Agency failed and refused to bargain with the Union on the location and design of the Fitness Center.
On January 6, 1989, the Union filed a grievance over the Agency's failure to respond to the Union's requests for negotiations on the Fitness Center. The Union alleged that the Agency violated Article VII of the parties' collective bargaining agreement by selecting Building 115 at the Federal Center in St. Louis, Missouri, as a Fitness Center and proceeding with the planning, funding and renovation of the building for the Fitness Center.(1) As a remedy, the Union demanded that the Agency begin negotiations immediately and stop all actions to build or implement a Fitness Center until the negotiations were completed.
The Arbitrator stated that the Union's position was that the Agency's plans for a Fitness Center constituted "'changes in working conditions'" and that Article VII of the Agreement obligated the Agency to notify the Union of the changes and bargain with the Union over them. Award at 12. The Arbitrator further stated that the Agency "[did] not dispute that Fitness Center arrangements [were] such changes and require[d] bargaining on request." Id. The Arbitrator explained that the Agency's position was that the grievance can only reach back to the Union's bargaining request of December 2, 1988, because the parties' agreement required Union-initiated grievances to be filed within 20 workdays "'after the event [grieved] is discovered or reasonably should have been discovered.'" Id. at 16.
The Arbitrator concluded that the Agency violated Article VII of the Agreement. The Arbitrator found that over an extended period of time prior to December 2, 1988, the Agency repeatedly took new actions on the Fitness Center project and "frequently hid its actions, and delayed its responses to the Union[.]" Id. at 19. According to the Arbitrator, the Agency "ignored requests for information, responded to the Union's request for information and bargain[ed] very slowly and unresponsively[.]" Id. The Arbitrator also found that after the Union's December 2 request for bargaining, the Agency solicited bids for the renovation of Building 115 and entered into a construction contract. The Arbitrator concluded that "after December 2, 1988, as before, the Agency had no intention of bargaining with the Union over the location and physical specifications of the Fitness Center, subjects on which Article VII requires it to bargain." Id. Accordingly, the Arbitrator sustained the grievance.
To remedy the breach of the agreement, the Arbitrator directed the Agency to immediately advise GSA that it was under the Arbitrator's order to desist from any further action to advance the Fitness Center project until the collective bargaining procedures were exhausted. The Arbitrator further stated:
That order includes a prohibition upon advancing any funds or taking any action to authorize or advance the renovation project. Naturally, this order does not purport to be directed to the GSA itself, although, of course, the Agency's actions may affect GSA decisions or activity and hopefully will do so.
Id. at 21.
III. Agency's Exceptions
The Agency does not dispute the Arbitrator's determination that the Agency violated Article VII of the Agreement; the Agency excepts only to the remedy awarded by the Arbitrator. The Agency argues that the remedy is deficient on two grounds. First, the Agency claims that the Arbitrator's bargaining order concerns a matter that does not affect conditions of employment of unit employees. Second, the Agency contends that the Arbitrator exceeded his authority by fashioning a remedy which (1) infringes on GSA's authority to carry out its responsibilities under the Public Buildings Act of 1959, as amended, 40 U.S.C. §§ 601-19, and the Federal Property Management Regulations; and (2) affects nonbargaining unit employees.
IV. Union's Opposition
According to the Union, the fact that negotiations over the Fitness Center may have some effect on nonunit employees does not render the topic nonnegotiable. The Union also contends that although the Federal Center houses employees of tenant activities other than the Agency, the Union represents employees of all the major tenants of the Federal Center. The Union also disputes the Agency's claim that the Arbitrator's award infringes on GSA's authority or the laws and regulations administered by GSA. The Union notes that the Arbitrator expressly recognized that the award did not apply to GSA.
Finally, the Union rejects the Agency's claim that the award is deficient because the Fitness Center does not concern conditions of unit employees. The Union notes that the Fitness Center is located on the Agency's premises and will be available for use by unit employees during and after the workday.
V. Analysis and Conclusions
A. The Agency Has Not Demonstrated That the Arbitrator's Award Concerns a Matter Which Does Not Affect conditions of Employment of Bargaining Unit Employees
In deciding whether a matter involves a condition of employment of bargaining unit employees, the Authority considers whether: (1) the matter pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the matter at issue and the work situation or employment relationship of bargaining unit employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 237 (1986) (Antilles). Here, the Agency asserts only that use of the Fitness Center by unit employees is "outside the work situation and employment relationship." Exceptions at 4. Consequently, as there is no dispute that the Fitness Center will be centrally located on the Agency's premises and available for use by bargaining unit employees, we conclude that the establishment of the Fitness Center clearly pertains to unit employees. Accordingly, we will consider only the second factor of the Antilles test: whether there is a direct connection between the Fitness Center and the work situation or employment relationship of unit employees.
In American Federation of Government Employees, Local 2761, AFL-CIO v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) (AFGE, Local 2761), the United States Court of Appeals for the District of Columbia Circuit reviewed the Authority's application of the second part of the Antilles test. The court noted that under Antilles, "the Authority inquires into the extent and nature of the effect of the practice on working conditions." Id. at 1145. In determining whether the matter there in issue constituted a condition of employment, the court examined whether there was a "link" or "nexus" between that matter and the worker's employment. Id. at 1447, 1449. The court found that where a matter has "a direct effect on the work relationship[,]" it concerns a condition of employment. Id. at 1449.
In this case, we find that the Department of Army Health Promotion Regulation, AR 600-63, Chapter 2-3 (2) establishes a nexus between physical fitness activities and unit employees' employment. For example, as noted in the regulation, employees engaged in occupations which require physical strength and stamina may be required to engage in a physical exercise program as a part of their jobs. In addition, the Agency encourages other employees to engage in physical fitness activities by approving up to 3 hours of administrative leave per week for 6 to 8 weeks for physical exercise training on duty time. Finally, the regulation provides that "beyond the situations" just discussed, "work schedules should be adjusted to permit training and exercise where possible and where consistent with workload and mission." AR 600-63, Chapter 2-3, part b.(5).
AR 600-63, Chapter 2-3, part b.(5) demonstrates that the Agency has linked employee participation in physical fitness activities to more efficient work performance and that the Agency encourages the adjustment of work schedules to enable employees to participate in physical fitness activities. We find, therefore, that the existence and availability of physical fitness facilities directly affects the work situation and employment relationship of bargaining unit employees. See AFGE, Local 2761, where the court held that an agency's practice of holding an annual picnic on the agency's premises during working hours as an opportunity for the agency to present employee awards and otherwise foster a productive relationship between employees and management constituted a condition of employment. See also Department of the Army, Fort Greely, Alaska, 23 FLRA 858, 864 (1986); and Department of the Army, Dugway Proving Ground, Dugway, Utah, 23 FLRA 578, 583 (1986).
For the foregoing reasons, we conclude that the Agency's establishment of the Fitness Center concerns conditions of employment of bargaining unit employees. Accordingly, we find that the Agency's first exception provides no basis on which to find the award deficient.
B. The Agency Has Not Demonstrated That the Arbitrator Exceeded His Authority
1. The Agency Has Not Established That the Arbitrator's Remedy Infringes On GSA's Authority or Violates Law and Implementing Regulations.
The Agency maintains first that the Arbitrator lacked the authority to direct the Agency to withhold funds from GSA. The Agency also contends that the Arbitrator exceeded his authority because "[t]he Arbitrator has infringed upon GSA's authority over the renovation and use of Building 115 by ordering the Agency 'to desist from further action to advance the Fitness Center Project until bargaining procedures are exhausted.'" Exceptions at 3. With respect to the latter contention, the Agency asserts that the award conflicts with the Public Buildings Act and the Federal Property Regulations because the award will prevent GSA from "exercising its authority and responsibilities under the Public Buildings Act and the Federal Property Management Regulations." Id.
In addition, the Agency asserts that the Arbitrator exceeded his authority by ordering a remedy "which affects parties beyond the scope of the stipulated grievance." Id. at 2.
We will address separately the Agency's two contentions that the Arbitrator exceeded his authority. First, we conclude that the Agency has failed to establish that the Arbitrator exceeded his authority by ordering a remedy which infringes on GSA's authority or violates laws and regulations administered by GSA.
Arbitrators have considerable latitude in fashioning remedies and may direct the parties to request action from a third party. See Overseas Education Association and Department of Defense Dependents Schools, Atlantic Region, 31 FLRA 80, 93 (1988). Further, arbitrators may properly direct an agency to take an action which is within the agency's authority and which would not violate law, rule or regulation. Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 24 FLRA 902 (1986).
In this case, the Arbitrator directed only that the Agency cease taking further action concerning the Fitness Center. Although the Agency claims that the Arbitrator lacked authority to direct the Agency "to stop payment on funds that have already been committed to another [F]ederal agency[,]" the Agency cites no authority for its claim and none is apparent to us. Exceptions at 2. Accordingly, this claim provides no basis for finding the award deficient.
Further, we conclude that the Agency has failed to establish that the award violates the Public Buildings Act of 1959, as amended, 40 U.S.C. §§ 601-19, or the Federal Property Management Regulations. The Arbitrator did not direct GSA to take any action and he did not direct the Agency to take any actions which were within the purview of GSA. There is, therefore, no basis on which to conclude that the Arbitrator exceeded his authority by ordering a remedy which infringes on GSA's authority or that the award conflicts with the Public Buildings Act and the Federal Property Management Regulations. Instead, the Agency's contentions are based solely on the Agency's speculation as to what GSA might do when the Agency advises GSA about the Arbitrator's award. Unsupported speculation concerning the possible effects of an award provides no basis for finding an award deficient. See U.S. Immigration and Naturalization Service and American Federation of Government Employees, AFL-CIO, Local 1917, 20 FLRA 391, 393-94 (1985).
2. The Agency Has Not Demonstrated That the Award Is Deficient Because It Affects Nonbargaining Unit Employees
An arbitrator exceeds his or her authority when the arbitrator issues an order affecting positions or employees beyond the scope of the matter submitted to arbitration. For example, U.S. Department of Housing and Urban Development and American Federation of Government Employees Local No. 3412, 24 FLRA 442, 445 (1986). In this case, the Arbitrator's remedy directly relates to the issue before the Arbitrator. In addition, the remedy does not, by its terms, pertain to or concern specific positions or employees, whether in or out of the bargaining unit.
In addition, we reject the Agency's assertion that the award is deficient because the remedy will have an adverse impact on nonbargaining unit employees. First, the Agency has not established that compliance with the remedy necessarily would delay the construction of the Fitness Center. Rather, the Agency's assertion in this regard is based solely on the Agency's speculation regarding the potential impact of the remedy on nonunit employees. As indicated above, unsupported speculation concerning the possible effects of an award provides no basis for finding an award deficient.
Moreover, even if such a delay occurred, the effect of that delay on nonbargaining unit employees does not render the award deficient. The negotiability and enforceability of provisions affecting both unit and nonunit employees are determined by examining, as relevant here, the effects of the proposals on the conditions of employment of unit employees. See United States Office of Personnel Management v. FLRA, No. 88-1901 (D.C. Cir. June 15, 1990). As noted previously, the Arbitrator's award concerns matters affecting conditions of employment of unit employees. Accordingly, even if the Arbitrator's award affects nonbargaining unit employees by delaying their access to the Fitness Center, that effect would not, in the circumstances of this case, render the award deficient.
The Arbitrator's remedy is directly responsive to the issue before him and there is no other basis on which to conclude that the Arbitrator exceeded his authority. Accordingly, we reject the Agency's exception.
The existence and availability of physical fitness facilities directly affects the work situation and employment relationship of bargaining unit employees. Accordingly, the Arbitrator's award concerns matters affecting unit employees' conditions of employment. In addition, the Agency has not demonstrated that the Arbitrator exceeded his authority by issuing an order which (1) infringes on GSA's authority or conflicts with applicable law or regulation; or (2) impermissibly affects nonunit employees. Consequently, the Agency's exceptions provide no basis for finding the award deficient.
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1. Article VII of the parties' collective bargaining agreement provides as follows:
SECTION 1. Negotiation of amendments and supplements to this Agreement as well as changes in working conditions may be requested by either the Employer or the Union.
SECTION 2. When the Employer notifies the Union of changes in working conditions, the notice will be in writing and specifically identify the change. All bargaining will be requested in writing, specifying the subject to be bargained. Documentation of any agreements resulting from such discussions will be in the form of a Memorandum of Understanding to be signed by the Union President or designee and the Employer's designated representative, and they will be treated as supplements to this agreement.
Award at 2.
2. AR 600-63 provides, in relevant part, as follows:
2-3. Physical fitness Physical fitness includes factors that allow people to function effectively in physical or mental work and in training or recreation, and still have energy to handle emergencies.
. . . .
b. Civilians employed by the Army.
(1) Civilians employed by the Army are encouraged to engage in a regular program of exercise and other positive health habits.
(2) For employees engaged in an occupation that requires physical strength and stamina for satisfactory performance (for example, firefighter), a physical exercise program may be a part of their jobs and may be conducted during duty hours.
(3) For other employees, commanders may approve up to 3 hours administrative leave per week to allow employees to participate in command sponsored physical exercise t