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48:1411(150)NG - - NFFE, Local 2024 & Interior, Bureau of Land Management, Medford, District Office - - 1994 FLRAdec NG - - v48 p1411

[ v48 p1411 ]
The decision of the Authority follows:

48 FLRA No. 150





LOCAL 2024










January 26, 1994


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of one proposal concerning physical fitness activities. For the following reasons, we conclude that the record is insufficient for us to make a negotiability determination regarding the proposal. Accordingly, we will dismiss the petition for review.

II. Background and Proposal

According to the record, the Agency initially permitted up to 1 and 1/2 hours per week of "official time" (1) for employees to engage in physical fitness activities, provided that employees "match" the amount of official time with an equal "amount of their own time."(2) Statement of Position, Attachment A at 1. Subsequently, the Agency eliminated the use of "'matching time'" for most employees and, instead, required employees to use annual leave or flexitime to participate in fitness activities. Statement of Position at 2. In response, the Union proposed "to use the old policy concerning the use of official time for wellness for field going employees . . . ." Petition for Review, Attachment 3. Although no specific proposal language is contained in the record before us, the Union explained that:

[t]he proposal seeks to restore the previous system of 'matching time' for physical fitness activities. The only new provision . . . would raise the present limit of . . . 'matching time' to 3 hours per week.

Petition for Review at 2.

III. Positions of the Parties

A. Agency

The Agency argues that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute based on the Authority's decision in National Association of Government Employees, Local R12-105 and U.S. Department of Defense, National Guard Bureau, The Adjutant General, California National Guard, 37 FLRA 462 (1990) (California National Guard), Statement of Position at 2-3. The Agency also argues that the proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute because, according to the Agency, the benefit to employees from the proposal is significantly outweighed by the burden on management's right to assign work. Finally, the Agency adopts, without explanation, the position taken by the agency in California National Guard that a proposal permitting employees to engage in physical fitness activities during duty time is inconsistent with 5 U.S.C. § 6101.

B. Union

The Union argues that the proposal does not excessively interfere with management's right to assign work because, according to the Union, the proposal allows the Agency to suspend an employee's participation in fitness activities in the event of a "'heavy or emergency workload[,]'" or if an employee's work falls to below fully satisfactory levels. Response at 1. Moreover, the Union claims that it has restricted the proposal "only to 'field going employees.'" Id. According to the Union, field going employees "are required to meet a standard of physical requirements to perform their jobs" and that these employees could face discipline if they fail to meet the physical requirements of their positions. Petition for Review, Attachment 3 at 1.

IV. Analysis and Conclusions

We are unable to determine the negotiability of the proposal because the record in this case is insufficient for us to understand the proposal and assess the parties' arguments concerning it.

The proposal would provide unit employees with "matching time" in which to engage in physical fitness activities. However, the parties neither addressed the meaning of the term "matching time" nor provided an example of how the proposal would operate. For example, the term "matching time" is susceptible, in our view, to differing interpretations. In this connection, "matching time" may operate to increase the amount of duty time authorized for fitness activities. On the other hand, the proposal may enable employees to compensate for duty time spent in physical fitness activities by extending their duty day for an amount of time equal to that used for such activities.

The parties bear the burden of creating a record on which the Authority can make a negotiability determination. Parties failing to meet their burden act at their own peril. See, National Federation of Federal Employees, Local 29 and U.S. Department of the Army, Engineer District, Kansas City, Missouri, 45 FLRA 603, 610 (1992). Absent information explaining and/or interpreting the proposal, we are unable to evaluate the Agency's position regarding the proposal's effect on management's rights or the Agency's claim that the proposal conflicts with 5 U.S.C. § 6101.

Accordingly, we will dismiss the petition for review.

V. Order

The petition for review is dismissed.

(If blank, the decision does not have footnotes.)

1. Although neither party defined the phrase "official time," it appears from the record as a whole that the parties intend the phrase to refer to duty time, rather than official time under section 7131 of the Statute. We will construe it accordingly.

2. The term "matching time" is not otherwise defined in the record.