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49 FLRA No. 101

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 251

FOREST SERVICE COUNCIL

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FOREST SERVICE

REGION 10

(Agency)

0-NG-2190

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

May 23, 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 proposal, which requires the Agency to grant up to one-half hour of official time⁽¹⁾ per day for fitness activities, is nonnegotiable. Accordingly, we will dismiss the petition for review.

II. Background and Proposal

The Agency decided to discontinue its practice of permitting up to one-half hour of official time per day for employees to engage in physical fitness activities. The Agency changed its policy after the Office of Personnel Management issued Federal Personnel Manual Letter (FPM Letter) 792-23,⁽²⁾ in which it recommended that agencies encourage employees to use non-duty time to engage in regular fitness activities. In response to the Agency's decision, the Union proposed that:

[Region 10] continue to allow employees to use official time to participate in Wellness activities.

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). 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 provided to employees by the proposal is significantly outweighed by the burden on management's right to assign work.

B. Union

The Union argues that the proposal does not interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute because the proposal requires the Agency to grant official time "only when the employee could normally be released from work." Response at 1. The Union also argues that the Agency is obligated to negotiate over the proposal based on its agreement, in the parties' Master Agreement, to negotiate over the establishment of health programs and policies which "have included the use of official time . . . to participate in . . . fitness activities." Id.

IV. Analysis and Conclusions

Proposals requiring agencies to grant duty time for employees to participate in physical fitness activities directly interfere with management's right to assign work. See, for example, National Association of Government Employees, Locals R12-122, R12-222 and U.S. Department of Defense, Washington National Guard, Tacoma, Washington, 38 FLRA 295, 302 (1990). The Union explains that, under the disputed proposal, official time would be granted "only when the employee could normally be released from work[,]" and that the Union has no intent to limit "management's ability to disapprove requests for official time if job related reasons exist." Response at 1, Petition for Review at 1. Consistent with this interpretation, the proposal would afford the Agency some flexibility to deny individual requests for official time. However, it is clear that, in at least some instances, the proposal would require the Agency to permit employees to engage in fitness activities on duty time. Consequently, we conclude that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See id. As the Union does not assert that the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, it is nonnegotiable.⁽³⁾

V. Order

The petition for review is dismissed.

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FOOTNOTES:
(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. Although the Agency initially declared the proposal nonnegotiable under section 7117(a)(1) of the Statute as contrary to FPM Letter 792-23, in its Statement of Position, however, the Agency does not make that argument. Moreover, during the pendency of this case, various provisions of the FPM were abolished and others were provisionally retained through December 31, 1994. See, FPM Sunset Document, Summary Table at 7. FPM Letter 792-23 has been abolished. See id. The Authority applies the law as it is at the time it makes a decision. See, for example, U.S. Department of Transportation and Federal Aviation Administration, 40 FLRA 690, 710 (1991) remanded as to other matters sub nom. Professional Airways Systems Specialists Division, District No. 1 - MEBA/NMU, AFL-CIO v. FLRA, No. 91-1310 (D.C. Cir. June 22, 1992) (mem.; per curiam) decision on remand, 48 FLRA 1211 (1993). Thus, as FPM Letter 792-23 is no longer in effect, it cannot be a basis for making a negotiability determination.

3. We reject the Union's argument that the Agency is obligated to bargain over the proposal based on its agreement to certain provisions in the parties' Master Agreement. The Union has not provided a copy of the agreement or otherwise supported this argument. 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 peril. See, for example, National Federation of Federal Employees, Local 2024 and U.S. Department of the Interior, Bureau of Land Management, Medford District Office, 48 FLRA 1411, 1413 (1994).

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