[ v16 p335 ]
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).