OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
|
DEPARTMENT OF VETERANS AFFAIRS DATA PROCESSING CENTER
AUSTIN, TEXAS
Respondent |
|
|
and
NATIONAL FEDERATION OF FEDERAL EMPLOYEES, AFL-CIO, LOCAL 1745 Charging Party |
Case Nos. 6-CA-10699
6-CA-10702 |
Julie Garnett Griffin, Esq. For the General Counsel
Jacqueline Muehlbach For the Charging Party
Before: ELI NASH, JR. Administrative Law Judge
DECISION
Statement of the Case
A Consolidated Complaint and Notice of Hearing issued by the
Dallas Regional Director of the Federal Labor Relations Authority
on January 19, 1993. It alleges that the Department of Veterans
Affairs Data Processing Center, Austin, Texas (herein called
Respondent or VADPC) violated section 7116(a) (1) and (5) of the
Statute by issuing a questionnaire to bargaining unit employees
stating that its current fitness program would be terminated and by
terminating the fitness program without providing the National
Federation of Federal Employees, Local 1745 (herein called the
Union or Charging Party) an opportunity to negotiate the substance
or the impact and implementation of that termination.(1)
A hearing on the Consolidated Complaint was conducted in
Austin, Texas at which all parties were afforded full opportunity
to adduce evidence, call, examine and cross-examine witnesses and
argue orally.(2) All parties filed
timely briefs which have been carefully considered.
Upon the entire record in this matter, my observation of the
witnesses and their demeanor and from all the testimony and
evidence at the hearing, I make the following:
Findings of Fact
1. The Union is the certified exclusive representative of
employees in a unit appropriate for collective bargaining at
Respondent's facility in Austin. The Charging Party also represents
Department of Veterans Affairs employees of Veterans Benefits,
located in the same building as VADPC, and employees of the
Department of Veterans Affairs Finance Center (VAFC), also in
Austin, Texas, at a different location.
2. During the period covered by this complaint Jacqueline
Muehlbach was an accounting technician at the VAFC, where she was
also the Union President. Patricia Shaw Napier was a computer
specialist at the Respondent and Chief Steward for the Charging
Party.
3. At all times material herein, Thomas Melville was the
Personnel Officer of the VA station in Austin, Texas.
4. In 1986, the Charging Party and Respondent negotiated a
local supplemental agreement which included the provision that
"Management shall endeavor to establish a 'wellness program'
designed to assist employee's [sic] in maintaining good
health."
5. In 1987, Respondent conducted a survey and established a
wellness program for employees at the VADPC and for other local VA
employees. As part of the wellness program, Respondent contracted
with St. David's Hospital for physical fitness or aerobics classes
to be held on site at the Austin VADPC. Employees who signed up for
classes first took physical fitness screening exams, which included
cholesterol and flexibility or stress testing.
6. Respondent actively promoted this wellness program from
the highest levels, including the Director of VADPC in 1987, Thomas
Acklen, and Assistant Director, Rosina Maiers. From at least August
1987 through February 28, 1991, Respondent granted administrative
leave to employees who participated in aerobics
classes.(3) While not everyone who
participated in the program used administrative leave, it was
certainly available to all. From 1987, Respondent made the fitness
program available, including the provision of administrative leave,
to other local VA employees in Austin, including those from
Veterans Benefits and from the Finance Division. The fitness
program continued for over three years, with the contract being
renewed each year.
7. Respondent's annual allocation for the aerobics or
fitness program was somewhere around $10,000.00. The number of
participants was based on room-size, and the room-capacity was
about 20 persons. There were two sessions of classes, one meeting
Mondays and Wednesdays, and the other meeting Tuesdays and
Thursdays with different participants in each session.
8. At the beginning of the program, classes were "packed",
then when some employees dropped out new participants were enrolled
from a waiting list after periodic screenings were conducted by St.
David's Hospital. More employees signed up for the screenings than
attended the fitness classes themselves. A committed group of
participants did not drop out, once they had joined. On average, in
any one class session there would be around 10 participants. For
the month of October 1991, for example, the total number of
attenders about 31.
9. Sometime around mid-January 1991 Respondent made its
decision to terminate or not to renew the contract for the fitness
classes at the contract's end. Thomas Melville, the Personnel
Officer, recommended to the Director that the contract be
terminated. About that same time, Respondent communicated its
intention to the contractor.
10. On February 5, 1991, Respondent issued a
memorandum/survey to the participants in the classes, announcing
the termination of administrative leave use for attendance at the
classes and a change in class times, and requesting the employees
to return the survey portion of the memorandum with their preferred
times and day or days of attendance. While the Charging Party did
not receive notice of this communication, Napier, an
employee-participant in the fitness classes, received the
memorandum as a participant. The Charging Party sent a request to
bargain substance or impact to the Respondent concerning any
changes planned in the program, dated February 7, 1991. The
Charging Party received no answer as of February 20, 1991, and
therefore, sent a follow-up electronic memorandum requesting a
response from Respondent on February 20, 1991.
11. On February 21, 1991, management issued a memorandum to
the Charging Party declining to bargain concerning changes related
to administrative leave for the classes, based on the contention
that the classes and administrative leave were not conditions of
employment. In the same memorandum, Respondent announced that the
program was going to be cancelled effective March 1, 1991. On
February 22, 1991, the Charging Party requested bargaining
concerning the discontinuance of the program, and requested that
Respondent not implement until the parties could meet. Respondent
did not answer, and on February 25, 1991 the Charging Party
requested, again, that Respondent not implement, but meet with the
Charging Party to negotiate.
12. Respondent issued a memorandum to employee-participants
in the class around February 25, 1991, informing them that "due to
budget constraints, the fitness classes being held at the DPC will
not be renewed when the current contract expires on February 28."
Respondent did not respond to the Charging Party's requests to
bargain until after the decision to terminate the fitness program
contract had taken effect. On March 8, 1991, after implementation
of its non-renewal and the effective cancellation of the program on
March 1, 1991, Respondent met with the Charging Party concerning
the issue.
13. On March 8, 1991, the Charging Party presented the
Respondent with three written proposals concerning the decision to
discontinue funding the fitness program. The proposals included
distribution of a survey, negotiating with the Charging Party
regarding management's decision to terminate funding for the
fitness class/wellness program following the survey results, and
negotiating with the Charging Party regarding the issue of payment
for the fitness classes. At the March 8 meeting, the Charging Party
requested to negotiate and Respondent declined, citing its view
that the issue did not concern a condition of employment. In a
March 8, 1991 letter by Melville, Respondent stated that it would
develop and distribute a questionnaire concerning wellness
activities to employees and would "consider [the Charging Party's]
input" regarding the survey. Respondent never developed the survey,
but relied instead on the 1987 survey in preparing for an Employee
Assistance Program (herein called EAP). It is worth noting, that
the 1987 survey reflected a high interest in physical fitness
activities.
14. Following Respondent's exit from sponsorship of the
physical fitness program, employee-participants, on their own,
initiated arrangements with St. David's Hospital to continue
fitness classes. Although Respondent continued to make space
available for the program, employees now had to pay for the classes
on their own, move heavy furniture before and after the classes,
and attend classes without working fans. Since employees no longer
had automatic continuous access to a regular room, on occasion they
needed to secure other space, when the room was otherwise occupied.
After the changes in the previous conditions, within nine months to
a year, employees were unable to maintain the number of
participants needed to continue the arrangement with St. David's
Hospital, and therefore, that arrangement ended. Employees who had
participated in the physical fitness program allegedly suffered
adverse impact from the lack of the program, including increased
stress, back pain, and use of leave. Additionally, since
administrative leave was no longer available, classes had to take
place at a later time during the day, and employees had to arrange
duty hours differently in order to attend.
15. As already stated, both Respondent and the Department of
Veterans Affairs actively encouraged employees to engage in
physical fitness activities. Also both Respondent and the
Department of Veterans Affairs expressly noted and acted upon a
connection between employees' physical fitness as well as their
work relationship with the VA as an employer. Specifically, with
respect to this relationship, Respondent and the Department of
Veterans Affairs have, through reports and other documents
addressing employee fitness, pointed to reduced absenteeism,
lowered insurance and disability benefit expenses, increased
productivity, stress reduction, the positive effect on morale, and
other indicia of the positive effects which employee physical
fitness and wellness have on the work relationship. Al Fayard
testified for Respondent to the same effects on the work
relationship as having been elements in the original establishment
of the wellness and physical fitness program in 1987. Melville also
testified for Respondent that physical fitness is a component of
the wellness concept. In fact, Respondent conceived its original
physical fitness program as a part of its wellness program when it
was installed in 1987. Melville acknowledged that employee
assistance programs, which include wellness components, are
negotiable. Also, the Department of Veterans Affairs has
interpreted section § 7901(a), as authorizing the expenditure of
agency funds on physical fitness equipment for use by VA employees.
Moreover, employees who engaged in the Respondent's physical
fitness program attest to its signif-icant effects on the work
relationship in lowering stress, increasing morale and work
effectiveness and reducing leave use. Lastly, Respondent supported
the adjustment of work schedules for the purpose of enabling
employees to attend physical fitness classes.
16. There is no question that Respondent had complete
discretion and authority in making the decision to terminate the
physical fitness program contract with St. David's Hospital in
1991. There is also no question that Respondent had complete
discretion and authority to take a different course at that time,
including continuing that contract for another year.
17. Although discontinuing the physical fitness program
contract, Respondent continues to maintain a line item for a
wellness program. This eliminates any question of whether or not
Respondent possessed the funds to continue the fitness classes
which it terminated in February 1991. The evidence disclosed that
after making the decision not to renew the contract for aerobics
classes, Respondent diverted that money to other items that were on
its "unbudgeted initiatives" list. Thus, between March 1991 and
January 1993, Respondent made no wellness program available to its
employees.
18. In January 1993, Respondent implemented an EAP through a
contract with the Employee Assistance Center of Texas, staffed by
Dr. Chuck Sublett. The EAP offers a variety of counseling services
and, when requested by the agency, can and does provide seminars on
wellness-related issues. The contracted-for EAP does not, however,
include any physical fitness component. The "same" appropriated
money which funded the aerobics classes and fitness screenings
provided by St. David's Hospital from 1987 through February 1991,
now funds the EAP contract with Dr. Sublett. Presently, Respondent
has the authority to contract for on-site fitness classes.
Furthermore, Respondent has the funds to fulfill the obligations of
a contract such as the one entered into with St. David's Hospital
from 1987 through 1991, either from its miscellaneous funding
source, or from other available sources, such as those used to meet
obligations arising from settlements of litigation involving
backpay. The percentage of the total budget used by the
wellness/physical fitness program is less than one percent.
Respondent definitely has the authority and ability to obtain funds
for "most anything" if ordered to do so by an appropriate third
party authority.
19. Melville testified that administrative leave is granted
within the discretion of supervisors for some purposes.
20. Physical fitness programs are considered to be a major
component of corporate wellness programs by Gina Akin, an authority
in the field.
Conclusions
A. Positions of the Parties
The General Counsel maintains that Respondent violated the
Statute by unilaterally implementing a change in its employee
fitness program without providing the Charging Party the
opportunity to bargain, in bypassing the Charging Party concerning
changes in the fitness program, and by refusing to bargain with the
Charging Party concerning the fitness program. For these alleged
violations the General Counsel seeks a status quo
ante remedy. The General Counsel argues that such a remedy,
including the reinstatement of the fitness program along with the
provision for administrative leave for employees to attend fitness
classes, is necessary to effectuate the purposes and policies of
the Statute.
The General Counsel urges that the fitness program and its
administrative leave provision were conditions of employment.
Accordingly, the General Counsel asserts that Respondent was
obligated to bargain with the Charging Party over any changes in
the fitness program, including the discontinuation of the program.
Here, the evidence reveals a fundamental connection between the
fitness program and the employment relationship and it shows that
the fitness program definitely had a direct effect on the work
relationship. Antilles Consolidated Education
Association and Antilles Consolidated School System, 22 FLRA
235 (1986); U.S. Department of the Army Aviation
Systems Command, St. Louis, Missouri, 36 FLRA 418 (1990).
Thus, Respondent's refusal to bargain with the Charging Party
regarding changes in the fitness program, including its
discontinuation although the fitness program clearly had a direct
effect on the work relationship, violated the Statute.
Contrarily, Respondent, denies a violation of the Statute
because the aerobics or fitness class was, in its opinion, not a
condition of employment for bargaining unit employees, and because
the Charging Party's proposal to continue the fitness or aerobics
class contract at government expense interferes with Respondent's
exclusive authority to determine its own budget under section
7106(a)(1). Respondent also argues that the authority for
establishment of an aerobics class rests with the Secretary of
Veterans Affairs pursuant to 5 U.S.C. 7901 who is bound by the
limits of the appropriations available. Additionally, Respondent
contends that requiring collective bargaining on the exercise of
the statutory authority contained in section 7901 is inconsistent
with the grant of that authority which rests exclusively with
Respondent. Finally, Respondent argues that the memorandum sent to
the aerobics class participants did not constitute a bypass of the
Charging Party since the memorandum did not concern a condition of
employment.
B. The fitness program which was in existence from 1987 through February
28, 1991 became a condition of employment
which was negotiable.
A condition of employment exists when a matter pertains to
bargaining unit employees and when the record establishes a direct
connection between the matter at issue and the work situation or
employment relationship of bargaining unit employees. Antilles Consolidated School System, supra. In this case there is little question that the
fitness program pertained to bargaining unit employees. Regarding
the latter, element, the Authority looks to whether there is a
nexus between the matter at issue and an employee's employment. In
Aviation Systems Command, supra, the Authority found that when an agency linked
employee participation in physical fitness activities to more
efficient work performance and when the agency encouraged the
adjustment of work schedules to enable employees to participate in
physical fitness activities, the existence and availability of
physical fitness facilities directly affected the work situation
and employment relationship of bargaining unit employees, and thus
constituted a condition of employment.
The elements essential for establishing a condition of
employment are demonstrated in this case. Through a variety of
internal analyses, reports, interpretations of statutory authority,
guidelines, newsletters and other documents produced by the
Department of Veterans Affairs and the Respondent, in addition to
the testimony of the Respondent's personnel officer and budget
analyst, Respondent and its parent agency have encouraged employees
to engage in physical fitness programs for such purposes as
increased productivity, reduced absenteeism and use of leave,
lowered insurance rates, and other objects which directly affect
the work relationship. Moreover, in the physical fitness program
itself, Respondent created an explicit nexus between the program
and the employment relationship, by sponsoring it on agency
premises, paying for it, providing administrative leave for
attendance at classes, and more or less actively encouraging the
involvement of employees through its newsletter and presentation of
tee-shirts. See U.S.
Department of the Air Force, Griffiss Air Force Base, Rome, New
York, 37 FLRA 570, 574-76 (1990), aff'd sub
nom. U.S. Department of the Air Force,
Griffiss Air Force Base, Rome, New York v. FLRA, 949 F.2d
1169 (D.C. Cir. 1991).
The policy of allowing administrative leave for employees to
attend physical fitness classes from 1987 through February 28,
1991, alone establishes that the fitness program as it existed at
Respondent constitutes a condition of employment. The matter of
administrative leave constitutes a condition of employment even
when it is held in conjunction with non-work activities.
See for example, U.S.
Department of Defense, Michigan Air National Guard, 127th Tactical
Fighter Wing, 43 FLRA 344, 355 (1991); U.S.
Department of the Army, Head-quarters, 101st Airborne Division,
Fort Campbell, Kentucky, 40 FLRA 371, 380 (1991). The
Authority has also clearly recognized that off-duty activities are
conditions of employment when there is a nexus between that
activity and the work relationship. U.S.
Department of the Air Force, Griffiss Air Force Base, Rome, New
York, 37 FLRA 570, 575-76 (1990). Consequently, it is found
that the matter of Respondent's physical fitness program for
employees, including its provision of administrative leave for
employees to attend fitness classes, constituted a condition of
employment.
The record also reveals that Respondent's physical fitness program was an established past practice. According to Melville, Respondent never considered the past practice aspect of the aerobics class, but was more concerned in terms of "legality" and "money." Authority law is clear that an agency may not change an established past practice without fulfilling its bargaining obligations. The physical fitness program at issue in this case, was conceived and promoted in 1987, pursuant to guidelines provided by the Department of Veterans Affairs. It continued through February 1991 only by Respondent's renewing its contract with the provider. This practice of providing the exercise classes to employees and actively promoting the program which it tied in with the work relationship was consistently exercised for a sufficient amount of time to demonstrate that a past practice was established. U.S. Department of Labor, Washington, D.C.,
38 FLRA 899, 909 (1990). Accordingly, Respondent violated the
Statute when it terminated this past practice along with the
administrative leave provision of the fitness program and when it
implemented its decision to discontinue the fitness program without
bargaining with the Charging Party.
Finally, Respondent's argument that an aerobics or fitness
program, which it promoted as a component of a wellness program, is
not a condition of employment and, not negotiable is frustrated by
its own bargaining history with the Charging Party. In 1986 or
shortly before creation of the fitness program, as part of its
wellness program in 1987, the parties negotiated into the local
agreement a provision concerning the creation of a wellness
program. Moreover, Respondent admitted that wellness programs are
negotiable. In any event, Respondent's concerns over the
negotiability of the fitness program are discussed further
below.
1. The decision to end the use of administrative leave for
participation in physical fitness classes was negotiable
as to impact and
implementation.
It has been found that proposals requiring an agency to
permit employees to use duty time for physical fitness activities
interfere with the agency's right to assign work. U.S. Department of Defense, Michigan Air National Guard, 127th
Tactical Fighter Wing, 43 FLRA 344, 359 (1991). Thus, only
the impact and implementation of changes related to the granting or
denial of administrative leave in connection with physical fitness
activities is negotiable here.
Accordingly, Respondent's decision to terminate the use of
administrative leave while attending physical fitness activities
was negotiable as to impact and implementation. Respondent's
failure to provide the Charging Party with prior notice and an
opportunity to bargain concerning the impact and implementation of
the termination of administrative leave for the fitness program
violated the Statute.
2. The decision to terminate the physical fitness contract
was negotiable as to substance and/or
impact.
The decision to end the physical fitness program which Respondent established and continued for three and a half years, was negotiable as to substance. The record is barren of evidence showing that the decision to end the fitness program affects the authority of Respondent to determine the mission or budget. Nor does the decision to end the physical fitness program encroach on Respondent's right to assign work. Unlike negotiability cases finding non-negotiable certain proposals addressing fitness programs for national guard technicians, see Michigan Air National Guard, supra, the program at the Respondent did not per se require a grant of duty time. Rather, Respondent affirmatively allowed administrative leave for over a three-year period. Since a requirement of administrative leave was the only aspect on which the physical fitness-related proposals in the national guard technician cases were found to interfere with an agency's right to assign work, that principle does not apply here. Nor does the decision to terminate a fitness program usurp any other management right specified in section 7106(a), or permissive subjects enumerated in section 7106(b).
Accordingly, the Respondent's refusal to bargain with the
Charging Party concerning the substance and impact and
implementation of its decision to terminate sponsorship of the
fitness program, violated the Statute.
C. No regulatory or statutory authority existed which would
relieve Respondent of the obligation to bargain concerning
changes in the fitness program, including its provision for
administrative leave.
Respondent's claim that its continued policy concerning
administrative leave was inconsistent with regulatory authority is
not supported by the record. Respondent had and still has
discretion in the matter of granting administrative leave for a
variety of purposes, and from 1987 through 1991 Respondent
exercised its discretion with respect to the fitness program. It is
well established that insofar as an agency has discretion regarding
a matter affecting conditions of employment it is obligated to
exercise that discretion through negotiations unless precluded by
regulatory or statutory provisions. Defense
Mapping Agency, Aerospace Center, St. Louis, Missouri, 40
FLRA 244, 245 (1991). Respondent offered no statutory or regulatory
provisions supporting its claim that a regulation prohibits the use
of administrative leave for fitness classes or precludes Respondent
from bargaining with the Charging Party concerning changes to the
classes concerning administrative leave. The lone document of
record relied on by Respondent to support this argument is FPM
Letter 792-23. That letter, by its own terms, is designed solely to
provide guidance to agency officials concerning the matter of
assisting employees in finding time to participate in health and
fitness activities. It is written entirely in the language of
recommendation, suggestion, and encouragement, and "urges agencies
to adopt" a specified list of recommended policies for granted
excused absences to employees for participating in health and
fitness activities. Nothing in the letter mandates that the
suggested policy be implemented; nothing in the letter precludes
such matters from bargaining. SeeDefense Contract
Audit Agency, 47 FLRA 512 (1992). Notwithstanding that
Respondent has unfettered discretion in making its decision to
change the administrative leave practice with respect to the
fitness classes, in order to accommodate its interpretation of the
FPM letter's guidance, it was not free to implement that change
without meeting its bargaining obligations with the Charging
Party.
D. The questionnaire issued directly to employee-participants
of the fitness program concerning changes in the program
constituted a bypass of the
exclusive representative.
Respondent sees its action on the communication as privileged since it considered the aerobic or fitness class not to be a condition of employment for bargaining unit employees. Since the condition of employment issue has already been resolved against Respondent, the remaining question seems to be whether the agency communication herein undermined the status of the exclusive representative.
The law is settled that an agency's direct dealing with
employees, including seeking their opinions and proposals
concerning matters clearly bargainable with the exclusive
representative, constitutes an unlawful bypass. Air Force Accounting and Finance Center, Lowry Air Force Base,
Denver, Colorado, 42 FLRA 1226, 1234-1235, 1239 (1991).
While all solicitation of views of employees do not constitute an
unlawful bypass, an agency may not undermine the status of the
exclusive representative when it does solicit such views from
employees. See Department
of the Treasury, Internal Revenue Service, Washington, D.C. and
Internal Revenue Service, Indianapolis, Indiana District
Office, 31 FLRA 832, 836 (1988).
Sometime around February 5, 1991, Respondent issued a letter
directly to bargaining unit employees, telling them of
administrative leave approval for attendance at fitness classes,
and directly soliciting employee views and preferences for new
times and days for fitness classes. At the time, Respondent had not
notified the Charging Party of any of the matters contained in the
letter, nor had it informed the Charging Party of its decision to
end administrative leave approval for fitness classes. Furthermore,
Respondent never told the Charging Party of its intention to poll
employees concerning the subject of changing class times or dates.
In this regard, Respondent also ignored a previously negotiated
agreement which required that it notify the Charging Party before
conducting a poll of unit employees. In addition, it ignored the
Charging Party's request to negotiate concerning the changes in the
fitness program indicated in the February 5, 1991 letter for two
full weeks. Meanwhile, employees and the Charging Party were left
with only conjecture and rumor to imagine what Respondent had in
mind for the already existing fitness program. Respondent thus
sought to deal directly with bargaining unit employees, soliciting
feedback from bargaining unit employees concerning proposed changes
in conditions of employment, thereby bypassing the Charging Party.
By its action, Respondent sent a message to employees that the
Charging Party had no role to play in the matter of the fitness
program or any changes concerning that program. It is the opinion
of the under-signed, that such a message, whether it was intended
to do so or not, could not help but undermine the status of the
Charging Party.
Under these circumstances, it is found that Respondent
committed a bypass in its February 5, 1991 communication to
employees regarding a condition of employment, in violation of the
Statute. Department of Transportation, Federal
Aviation Administration, Los Angeles, California, 15 FLRA
100, 104 (1984).
E. Respondent's failure to give notice or the opportunity
to bargain to the exclusive representative concerning
changes to the fitness program, and its refusal to
bargain concerning such changes including the
termination of the program itself,
violated the Statute.
Respondent refused to bargain concerning its changes to the
physical fitness program, including the termination of the program.
Further, Respondent failed to give notice or the opportunity to
bargain concerning the termination of the administrative leave
provision for attending fitness classes. Since the matters are
found to be conditions of employment, Respondent was obligated to
give notice and an opportunity to bargain to the Charging Party
concerning changes prior to an implementation. Failure to do so, as
seen here, constitutes an express refusal to bargain and thereby,
violated the Statute. U.S. Department of Labor,
Washington, D.C., 38 FLRA 899, 909 (1990).
In summary, it is found that Respondent violated section
7116(a)(1) and (5) of the Statute by issuing a questionnaire to
bargaining unit employees stating that its current fitness program
would be terminated and by terminating the fitness program without
providing the Charging Party an opportunity to negotiate the
substance or the impact and implementation of that termination.
The Remedy
The General Counsel recommends a status quo
ante remedy in this case. I agree. The instant record reveals
that the factors in Federal Correctional
Institution, 8 FLRA 604, 606 (1982) were met. Further,
Respondent did not establish any special circumstances to show that
a status quo ante remedy is unwarranted in the
circumstance of this particular case. In my view, Respondent's
argument that a status quo ante remedy would
"wipe out" the current EAP program, presumably because that program
uses the same funds appropriated for the wellness program, which
previously went to the fitness program, lacks merit. In this
regard, the record discloses that Respondent would have no
difficulty obtaining additional funds, if required to do so.
Likewise, the undersigned rejects Respondent's argument that
restoring the aerobics or fitness class would "involve a
significant increase in the amount of money allocated for employee
wellness programs." Finally, Respondent pointed to nothing which
precludes immediate contracting for a fitness program. Since there
is no evidence of special circumstances to preclude a status quo ante remedy, the requested remedy appears
appropriate.
Having found that Respondent violated the Statute by its
action herein, it is recommended that the Authority adopt the
following:
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that the Department of Veterans Affairs Data
Processing Center, Austin, Texas, shall:
1. Cease and desist from:
(a) Failing and refusing to provide to the National
Federation of Federal Employees, Local 1745, the exclusive
representative of bargaining unit employees, the opportunity to
negotiate the substance or the impact and implementation of changes
in conditions of employment regarding a fitness program, including
the termination of the program.
(b) Failing and refusing to bargain with the
National Federation of Federal Employees, Local 1745, the exclusive
representative of bargaining unit employees, regarding the
substance or the impact and implementation of changes in conditions
of employment regarding a fitness program, including the
termination of the program.
(c) Failing and refusing to bargain in good faith
with the National Federation of Federal Employees, Local 1745, the
exclusive representative of bargaining unit employees, by bypassing
the designated union representatives and soliciting input directly
from employees regarding changes in conditions of employment of the
fitness program.
(d) In any like or related manner interfering with,
restraining, or coercing bargaining unit employees in the exercise
of their rights under the Federal Service Labor-Management
Relations Statute.
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute:
(a) Upon request, bargain in good faith, with the
National Federation of Federal Employees, Local 1745, regarding any
changes in conditions of employment affecting bargaining unit
employees regarding the fitness program.
(b) Rescind the termination of the fitness program
which took effect March 1, 1991, and reinstate the fitness program,
including the use of administrative leave, which was in effect
prior to March 1, 1991.
(c) Post at its facilities in the Department of
Veterans Affairs Data Processing Center, Austin, Texas, where
bargaining unit members represented by the National Federation of
Federal Employees, Local 1745, are located, copies of the attached
Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Director, and shall be posted and maintained for 60 consecutive
days thereafter, in conspicuous places, including all bulletin
boards and other places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such Notices
are not altered, defaced, or covered by other material.
(d) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notifying the Regional Director of the
Dallas Region, Dallas, Texas in writing, within 30 days from the
date of this Order, as to what steps have been taken to comply
herewith.
Issued, Washington, DC, August 18, 1994
ELI NASH, JR.
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to provide to the National Federation
of Federal Employees, Local 1745, the exclusive representative of
bargaining unit employees, the opportunity to negotiate the
substance or the impact and implementation of changes in conditions
of employment regarding a fitness program, including the
termination of the program.
WE WILL NOT fail or refuse to bargain with the National
Federation of Federal Employees, Local 1745, the exclusive
representative of bargaining unit employees, regarding the
substance or the impact and implementation of changes in conditions
of employment regarding a fitness program, including the
termination of the program.
WE WILL NOT fail or refuse to bargain in good faith with the
National Federation of Federal Employees, Local 1745, the exclusive
representative of bargaining unit employees, by bypassing the
designated union representatives and soliciting input directly from
employees regarding changes in conditions of employment of the
fitness program.
WE WILL NOT in any like or related manner interfere with,
restrain or coerce bargaining unit employees in the exercise of
their rights under the Federal Service Labor-Management Relations
Statute.
WE WILL bargain in good faith, upon request, with the National
Federation of Federal Employees, Local 1745, regarding any changes
in conditions of employment affecting bargaining unit employees'
fitness program.
WE WILL rescind the termination of the fitness program which
took effect March 1, 1991, and we will reinstate the fitness
program, including the use of administrative leave, which was in
effect prior to March 1, 1991.
(Activity)
Date: ______________________________ By:_________________________________
(Signature) (Title)
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced, or covered by any
other material.
If employees have any questions concerning this Notice or
compliance with its provisions, they may communicate directly with
the Regional Director, Dallas Region, Federal Labor Relations
Authority, whose address is: 525 Griffin Street, Suite 926, LB 107,
Dallas, Texas 75202-1906, and whose telephone number is: (214)
767-4996.
1. The Complaint was amended at the hearing.
2. Evidence concerning settlement communications is inadmissible and therefore, not material to any determination in this case. Rolla Research Center, U.S. Bureau of Mines, Rolla, Missouri, 29 FLRA 107 (1987); Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio; and Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 21 FLRA 529 (1986). Accordingly, the testimony elicited concerning communications between the parties while attempting to settle this matter has not been considered in making the findings herein.
3. The parties stipulated that "From at least August 1987 through February 28, 1991, the Department of Veterans Affairs Automation Center in Austin, Texas (formerly Veterans Admin-istration, Austin, Texas, the Data Processing Center and Veterans Benefits Administration) granted administrative leave to employees who participated in aerobics classes." Respondent currently is called the Department of Veterans Affairs Austin Automation Center.