37:0462(31)NG - - NAGE Local R12-105 and DOD, NG Bureau, The Adjutant General, California NG - - 1990 FLRAdec NG - - v37 p462
[ v37 p462 ]
The decision of the Authority follows:
37 FLRA No. 31
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
THE ADJUTANT GENERAL
CALIFORNIA NATIONAL GUARD
DECISION AND ORDER ON NEGOTIABILITY ISSUE
September 21, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one Union proposal. The proposal would grant employees 3 hours per week to engage in physical fitness activities. For the reasons that follow, we find that the proposal is nonnegotiable.
II. The Proposal
Article IX. Hours of Work. Section 6. Three (3) hours per week of extended lunch hours or breaktime authorized for physical fitness on a sign out program for aerobic fitness only (Jogging, Biking, Exercise room, walking).
III. Positions of the Parties
The Union contends that the proposal is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. The Union states that the proposal is intended to ameliorate the adverse effect on unit employees of the exercise of the Agency's right under section 7106(a)(2)(A) "to determine the requirements employees must satisfy to retain their positions." Memorandum in Support of Petition for Review of Negotiability Issue (Union's Memorandum) at 4.
The Union maintains that as a condition of employment, unit employees, who are Air Technicians, are required to be members of the Air National Guard. The Union asserts that an individual may be dismissed from the Air National Guard if he or she fails to meet physical fitness requirements. The Union also asserts that Air Technicians may be removed from their civilian positions if they are unable to physically perform their duties or fail to meet the medical requirements of the Air Technician position. The Union states that the proposal "seeks to provide employees periods of time when they can engage in activities designed to ensure that they meet the Agency's fitness requirements and thereby retain their positions." Id. at 5.
The Union argues that the proposal does not excessively interfere with the Agency's rights because both the Agency and the Union benefit from the proposal. According to the Union, the proposal: (1) promotes the Agency's interest in ensuring that its employees meet physical fitness requirements and are able to retain their positions; and (2) is a means to achieve the Agency's goal of a stable workforce.
The Agency contends that the proposal interferes with management's right to assign work because it would effectively preclude the Agency from assigning duties to employees while they are engaged in the activity described in the proposal. The Agency also contends that the proposal is not an appropriate arrangement because it excessively interferes with the Agency's rights. The Agency argues that, under the proposal, management would be prevented from assigning duties to employees once they are engaged in physical fitness activities. The Agency states that the effect of the proposal is to provide employees with paid time to exercise when management would be precluded from assigning work to the employees or directing their work activity. In addition, the Agency argues that "such nonwork activity cannot be considered worktime as provided by 5 USC 6101." Agency's Statement of Position at 1.
IV. Analysis and Conclusion
The Union "concedes" that in Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508 (1987) (Fort Bragg Schools)(*), the Authority "ruled that a proposal similar to the proposal at issue in this case was nonnegotiable." Response of the Union to the Agency's Statement of Position (Union's Response) at 2, citing Fort Bragg Schools, 30 FLRA at 546-48 (Proposal 42 permitted up to 30 minutes per day for employees to engage in an activity that promotes physical fitness and mental health and was inconsistent with the agency's right to assign work under section 7016(a)(2)(B) because it precluded the agency from assigning duties to employees engaged in personal activities). However, the Union argues that Fort Bragg Schools is not dispositive of the issue in this case because the Authority did not address, in Fort Bragg Schools, whether the proposal constituted an "appropriate arrangement" under section 7106(b)(3) of the Statute. We agree that the Authority's decision in Fort Bragg Schools is not dispositive of whether the proposal in this case constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.
The Union "recognizes that under [s]ection 7106(a)(2)(A) management has the unfettered right to require unit employees to maintain a specific level of fitness to retain their technician positions." Union's Memorandum at 5. See American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265, 269 (1990) (management's right to assign employees under section 7106(a)(2)(A) includes the right to determine the particular qualifications and skills needed to perform the work of the position and whether employees meet those qualifications). See also Michigan Air National Guard, Selfridge ANG Base Michigan and the Association of Civilian Technicians, Michigan State Council, 33 FLRA 385 (1988), reconsideration denied, 34 FLRA 296 (1990) (agency determination that grievant was not in compliance with weight requirements and not eligible to go on temporary duty assignment (TDY) was exercise of its right under section 7106(a)(2)(B) to establish the particular qualifications needed to perform a TDY and to make judgments as to whether grievant met those qualifications). The Union contends that the proposal is an appropriate arrangement for employees adversely affected by management's exercise of its right under section 7106(a)(2)(A) to determine the requirements employees must satisfy to retain their positions. The Agency contends that the proposal is not an appropriate arrangement because it excessively interferes with management's right to assign work.
Under section 7106(b)(3), "[t]he question whether employees are adversely affected by an exercise of a reserved management right necessitates close analysis of the relevant facts. Not every change in work requirements, or every added burden of job performance, will present an occasion for [s]ection 7106(b)(3) collective bargaining." Overseas Education Association, Inc. v. FLRA, 876 F.2d 960, 973 (D.C. Cir. 1989). To determine whether a proposal is an arrangement for employees adversely affected by the exercise of management rights, we examine "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986). The proposal must address more than "purely speculative or hypothetical concerns, or [concerns] which are otherwise unrelated to management's exercise of its reserved rights." See West Point Elementary School, Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1012 (1990).
The Union seeks to mitigate the adverse effect on employees of management's exercise of its right to establish physical fitness requirements as a condition of retaining the civilian technician position. The Union states that as a condition of employment, unit employees are required to maintain membership in the National Guard. The Union also states that to retain membership in the National Guard, technicians must meet the physical fitness standards of the National Guard. The Union asserts that a technician "may be removed from his civilian position if he is physically unable to perform his duties or fails to meet the medical requirements of his technician position." Union's Memorandum at 5. The proposal would mitigate these adverse effects by "provid[ing] employees periods of time when they can engage in activities designed to ensure that they meet the Agency's fitness requirements[.]" Id.
The adverse effects described by the Union are not the direct, inevitable result of the Agency's exercise of its right to establish physical fitness requirements. That is, the mere establishment of physical fitness requirements does not automatically result in the removal of an employee from a position. However, it is reasonably foreseeable that some employees will be adversely affected by the physical fitness requirements. See West Point Elementary School, Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1013 (1990) (Provision 1). In those circumstances where management determines that an employee no longer is physically qualified to perform the duties of the job to which the employee is assigned, that determination adversely affects the employee. "This exercise of management's right has an immediate and clearly defined adverse impact on the employee: the employee no longer will be able to hold that job." International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 39 (1990) (Portsmouth Naval Shipyard) (Provision 2). Therefore, we conclude that the proposal constitutes an arrangement within the meaning of section 7106(b)(3). Next, we must weigh the "competing practical needs of employees and managers" to determine whether the proposal constitutes an "appropriate" arrangement or whether it is inappropriate because it excessively interferes with management's right. Kansas Army National Guard, 21 FLRA at 31-33.
The Union states that the benefit of the proposal is that "employees are provided duty time to engage in activities designed to ensure that they meet the physical and medical requirements of their position." Union's Memorandum at 6. The Union also states that the Agency benefits by "low turnover." Id. That is, the proposal would minimize the instances where technicians are removed from their positions because they fail to meet the physical fitness requirements. The burden, as identified by the Agency, is on the Agency's ability to assign work. Under the proposal, the Agency would be precluded from assigning work to technicians during the time they are engaged in the activity described in the proposal. This would result in a loss to the Agency of 3 hours of work each week as to each technician in the collective bargaining unit. In our opinion, the burden on the Agency's right to assign work is substantial.
The benefit to employees of having duty time to engage in physical fitness activities is of relatively limited significance when compared to the significant burden on the Agency. Because the potentially adverse effects may arise only in limited circumstances as to particular employees and are not inevitable, it is excessively burdensome to require the Agency to provide 3 hours of duty time each week for every unit employee to engage in physical fitness activities. Further, the proposal does not allow exceptions. Thus, the Agency would be prevented from denying technicians duty time for physical fitness activities, for example, to respond to staffing shortages.
Weighing the competing practical needs of management and employees, we find that the proposal provides limited benefits to adversely affected employees and significantly limits management's ability to assign work. Consequently, we conclude that the Union's proposal excessively interferes with management's right to assign work and, therefore, is nonnegotiable.
Because we have found that the proposal excessively interferes with the Agency's right to assign work and is nonnegotiable, we need not address the Agency's contention that the proposal is inconsistent with 5 U.S.C. § 6101. However, we note that the Agency has not provided any support for its contention that the proposal is inconsistent with law.
The petition for re