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26:0593(73)NG
The decision of the Authority follows:
26 FLRA No. 73
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-32
Union
and
DEPARTMENT OF THE ARMY, FORT
LEONARD WOOD, MISSOURI
Agency
Case No. 0-NG-1315
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of four proposals which were raised in
connection with the Agency's implementation of a smoking policy at Fort
Leonard Wood. The policy was based on the Department of the Army's
"Policy on Controlling Smoking" and Department of Defense Directive
1010.10. The Union's proposals are additions to or deletions from
paragraph 4 of the plan to implement those at Fort Leonard Wood. /1/
II. Proposals
Proposal 1
a. Smoking is prohibited in DA occupied space except for
designated smoking areas that are necessary to avoid undue
inconvenience to persons who desire to smoke. Except in medical
care facilities, smoking will be allowed in corridors, lobbies,
and restrooms.
(Disputed is the addition of the underscored sentence.)
Proposal 2
d. Smoking is prohibited in all military (vehicles and)
aircraft.
(Disputed is the deletion of the phrase in brackets.)
Proposal 3
e. Smoking areas will be designated and posted in all eating
facilities in DA occupied buildings (if adequate space and
ventilation are available to provide nonsmokers a healthful
environment.)
(Disputed is the deletion of the phrase in brackets.)
Proposal 4
h. Smoking is prohibited at all child development centers and
youth activity facilities, except that visiting adults and staff
may smoke (out of the presence or view of children) in designated
smoking areas.
(Disputed is the deletion of the phrase in brackets)
Positions of the Parties
The Agency summarizes the effect of the proposals as permitting
smoking in the following places: corridors, lobbies and restrooms;
military vehicles; eating facilities which do not have adequate space
and ventilation to provide nonsmokers a healthful environment; and
designated smoking areas in child care facilities even if children are
present in those areas. The Agency argues that Proposal 4 does not
relate to conditions of employment of unit employees and also contends
that all the proposals are outside the duty to bargain because of their
effect on nonbargaining unit employees. Further, the Agency contends
that the proposals are inconsistent with an Agency regulation for which
there is a compelling need and that they are inconsistent with the
requirement of an effective and efficient Government as mandated by
section 7101(b) of the Statute.
The Union acknowledges that some of its proposals conflict with the
new Army regulation on this matter, but contends that there is no
compelling need for the regulation which would bar negotiations. As to
Proposal 4, the Union states that it intends for that proposal and the
other proposals to apply only to bargaining unit employees and that the
effect of those proposals on nonunit employees is small because most
smoking will be in designated areas with minimal impact on those
employees. As to Proposal 1, the Union contends that it is not contrary
to any regulation now in effect but rther that it is consistent with the
Army policy. Additionally, the Union argues that the Agency's argument
as to an effective and efficient Government is without merit and that
any cost arguments raised by the Agency are matters to be resolved by
the Federal Service Impasses Panel, not the Authority.
Both parties responded to the Authority's request for supplemental
statements on the effect of new General Services Administration (GSA)
regulations governing smoking in GSA-controlled buildings. The Agency
states that the GSA regulations are not applicable because the proposals
concern buildings that are not controlled by GSA, but contends that the
spirit and intent of the GSA regulations support its position that the
proposals are not negotiable. The Union does not assert that the GSA
regulations apply here, but contends that those regulations provide
agencies with discretion concerning this matter and thus that agencies
should bargain with exclusive representatives in this area.
IV. Analysis and Conclusions
A. Whether Proposal 4 Concerns the Conditions of
Employment of Unit Employees
The Agency contends that the disputed language of Proposal 4 is
outside the duty to bargain because no members of the bargaining unit
are assigned to the child care center staff and consequently the
proposal does not pertain to the conditions of employment of bargaining
unit employees. The Authority has held that there are two basic factors
to be considered in deciding whether a proposal involves a condition of
employment for unit employees: (1) whether the matter proposed to be
bargained pertains to bargaining unit employees; and, (2) the nature
and extent of the effect of the matter proposed to be bargained on the
working conditions of those employees. Antilles Consolidated Education
Association and Antilles Consolidated School System, 22 FLRA No. 23
(1986). In this case, the Union has shown that bargaining unit
employees visit the center to perform maintenance duties. Proposal 4
affects the designation of smoking areas at the child care center and it
thereby pertains to working conditions of bargaining unit employees when
they are performing duties at the center. Because the proposal concerns
the application of the Agency's smoking policy in those situations where
unit employees are working at the child care center, we conclude that
the proposal, unless otherwise nonnegotiable, is within the Agency's
duty to bargain.
Moreover, we note that employees are subject to "adverse
administrative action" for violations of the Agency's smoking policy.
See the document entitled "Policy on Controlling Smoking," Section 3.E.,
and the document entitled "Controlling Smoking," Section 5, both
attached to the Agency's Statement of Position. For this reason also,
we find that the subject matter of the proposals clearly concerns the
conditions of employment of unit employees.
B. Whether the Proposals are Determinative of the
Conditions of Employment of Employees Outside the
Bargaining Unit
The Agency contends that the Union's proposals, particularly
Proposals 1 and 2, are outside the duty to bargain because they would
determine conditions of employment for nonunit employees by allowing
smoking in corridors, restrooms, and other public areas and in military
vehicles. In American Federation of Government Employees, Local 32,
AFL-CIO and Office of Personnel Management, 22 FLRA No. 49 (1986),
petition for review filed sub nom. American Federation of Government
Employees, Local 32 v. FLRA, no. 86-1447 (D.C. Cir. August 11, 1986),
the Authority held that it would determine the negotiability of
proposals affecting conditions of employment of nonunit as well as unit
employees by weighing the right of the union to negotiate over those
conditions of employment against the right of the agency to set the
conditions of employment of nonbargaining unit employees. If it is
determined that the impact of the proposals would be so intrinsically
related to the working conditions of nonunit employees as to
significantly affect the rights of those employees, management is not
required to bargain. On the other hand, where the proposals have only a
limited or indirect effect on the interests of employees outside the
bargaining unit, they will be subject to appropriate negotiations. Id.
In this case we agree with the Union that the impact of the proposals
on nonunit employees would be limited and would not significantly affect
their rights. Unlike a proposal for a specific competitive area which,
if it is to be consistent with OPM regulations, must of necessity
determine the competitive area of nonunit employees, the proposals in
this case prescribe only the places where unit employees will be
permitted to smoke. The proposals do not limit management's ability to
determine the conditions under which nonunit employees will or will not
be allowed to smoke, nor do the proposals in any other way restrict
management's ability to determine the conditions of employment of
nonunit employee. While the proposals would expand the areas in which
unit employees would be able to smoke and thus would restrict
management's ability to limit the effect of that smoking on other
employees, that is not a matter concerning the effect of the proposal on
nonunit employees. It is a matter primarily concerning the effect of
the proposal on nonsmokers rather than nonunit employees. Thus, in our
view these proposals are not directly determinative of the conditions of
employment of nonunit employees. They are not so integrally or
intrinsically related to the working conditions of nonunit employees as
to significantly affect the rights of those employees. Consequently, we
find that these proposals concern the conditions of employment of
bargaining unit employees and, unless otherwise nonnegotiable, are
within the duty to bargain.
C. Whether There Is a Compelling Need for the Agency's
Regulations
The Agency argues that all of the proposals are inconsistent with the
provisions of Agency regulations, namely the Army Policy on Controlling
Smoking, June 6, 1986 and a Department of Defense directive on health
matters, DoD Directive 1010.10, "Health Promotion," March 11, 1986, for
which there is a compelling need under section 2424.11(a) of the
Authority's Rules and Regulations. In essence, the Agency maintains
that the portions of the Policy on Controlling Smoking and the DoD
Directive that prescribe the areas in which smoking will or will not be
permitted are essential for the functioning of the Departments of
Defense and Army in an efficient and effective manner for reasons of
cost and employee health. The Agency cites various authorities to
support its claim that the reduction or elimination of smoking will
increase productivity and decrease illness, absenteeism, and premature
death among its employees. The Agency contends that it is essential
that the smoking policy be applied consistently throughout the Army to
all employees, military and civilian, in and out of bargaining units,
because of the potential detrimental effects of smoking on nonsmokers.
We find that the Agency has failed to meet its burden of
demonstrating that a compelling need exists for the Army Policy on
Controlling Smoking or the DoD Directive to bar negotiations under
section 7117(a)(2) of the Statute. In order for the Authority to find
that a compelling need exists for an agency regulation to bar
negotiations on a proposal, the agency must (1) identify a specific
agency-wide regulation; (2) show that there is a conflict between its
regulation and the proposal; and (3) demonstrate that its regulation is
supported by a compelling need under the standards set forth in section
2424.11 of the Authority's Rules and Regulations. See American
Federation of Government Employees, AFL-CIO, Local 3804 and Federal
Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986)
(Proposal 7). In this case, in order to support its allegation of
compelling need, the Agency must show that the cited regulations are
essential, as distinguished from helpful or desirable, to the
accomplishment of its mission or the execution of its functions in a
manner which is consistent with the requirements of an effective and
efficient Government. See section 2424.11(a) of the Authority's Rules
and Regulations. However, generalized and conclusionary reasoning is
not enough to support a finding of compelling need. Id.
The proposals clearly conflict with particular provisions of the
Agency's regulations because, in essence, they expand the areas in which
unit employees would be permitted to smoke beyond the limits set forth
in those regulations. Compare Proposal 1 with Department of the Army
(DA) Policy on Controlling Smoking, Section 3.D.(2)., Proposal 2 with
DoD Directive 1010.10, Section F.4.a.(2).(d). and DA Policy, Section
3.D.(3)., Proposal 3 with the DoD Directive, Section F.4.(a).(2).(b).
and DA Policy 3.D.(4)., and Proposal 4 with DA Policy 3.D.(8).
Moreover, the Agency has demonstrated generally that smoking can have
deleterious effects on employee health, and that the costs associated
with those effects in terms of workforce effectiveness and productivity
can be significant. However, the Agency has not shown that without the
particular regulatory restrictions as to the areas in which smoking will
be permitted it will be unable to achieve its objectives of greater
employee health, enhanced productivity, and reduced operational costs.
That is, even assuming that the objectives of the Agency's regulation
restricting smoking are related to the accomplishment of its mission in
an effective and efficient manner, the Agency has not shown that the
particular restrictions set forth in its regulations are essential to
those purposes within the meaning of the Authority's criterion.
As the Union points out, the Agency's regulations permit smoking in
some areas. The Agency has apparently determined therefore that smoking
by employees in the workplace is not wholly incompatible with the
achievement of its objectives. But if smoking in some areas of the
workplace can be permitted consistent with the agency's objectives, then
it is not essential to absolutely preclude smoking in order to achieve
those objectives. If it is not essential to preclude all smoking, it
cannot be essential to limit smoking to one area rather than another.
The most that can be claimed for particular limitations in the Agency's
regulations as to areas in which smoking is permitted therefore is that
they are helpful in achieving those objectives. They have not been
shown to be essential. Consequently, we find no merit in the Agency's
contention that a compelling need exists for its policy under section
7117(a)(2) so as to bar negotiations on the proposals.
For the same reasons, we reject the Agency's contention that the
proposals are inconsistent with section 7101(b) of the Statute. In our
view, the Agency's arguments concern the merits of the proposals and are
better addressed to the Federal Service Impasses Panel or to an interest
arbitrator.
V. Order
The Agency must upon request (or as otherwise agreed to by the
parties) bargain concerning Proposals 1 -- 4. /2/
Issued, Washington, D.C., April 20, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union has withdrawn its petition as to one other proposal and
that proposal will not be considered further in this decision.
(2) In finding these proposals to be within the duty to bargain, the
Authority makes no judgment as to their merits.