30:0032(8)NG - NTEU and IRS, Indianapolis District -- 1987 FLRAdec NG

 30 FLRA NO. 8
 30 FLRA 32

12 NOV 1987



NATIONAL TREASURY EMPLOYEES UNION

                   Union

      and

INTERNAL REVENUE SERVICE
INDIANAPOLIS DISTRICT

                   Agency

Case No. O-NG-1402

DECISION AND ORDER ON NEGOTIABILITY ISSUE

     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
concerns the negotiability of a single proposal. For the
following reasons, we find the proposal to be negotiable.

     II. Proposal

     Article 2A(7)

     All employees may smoke within the confines of designated
smoking areas throughout the District. Individuals occupying
designated smoking areas within the District will respect the
rights of nonsmokers and will refrain from smoking at the request
of nonsmoking employees or make other suitable accommodations.

     III. Positions of the Parties

     The Agency recognizes that the Authority has found proposals
concerning smoking to be negotiable even where they would affect
nonunit employees. However, the Agency contends that the proposal
in this case is different in that it would directly prescribe the
conduct of managerial employees. The Agency argues that the
impact of the proposal on nonbargaining unit employees is
significant and direct, and that in fact the proposal primarily
will affect nonbargaining unit employees as most all of the
Agency's private offices are occupied by managerial employees.

     The Union contends that the intent of the proposal is to
enable nonsmoking bargaining unit employees to ask individuals
occupying designated smoking areas to refrain from smoking when
bargaining unit employees must be in these areas, thereby
protecting the health and safety of unit employee nonsmokers.
Accordingly, the Union asserts that the primary impact of its
proposal is on the nonsmoking unit employees whom it is seeking
to protect.

     IV. Analysis and Conclusion

     As the parties noted, we recently decided in National
Association of Government Employees, Local R14-32 and Department
of the Army, Fort Leonard Wood, Missouri, 26 FLRA  593 (1987),
that proposals concerning the implementation of an agency smoking
policy were negotiable. We rejected the Agency's argument in that
case that the proposals were non-negotiable because they were
determinative of the working conditions of nonbargaining unit
employees. We concluded that the proposals primarily affected
nonsmokers rather than nonunit employees. Therefore, we found
that the proposals were not directly determinative of the
conditions of employment of nonunit employees.

     We find that the proposal in this case is negotiable on the
same grounds as we found the proposal in Fort Leonard Wood to be
negotiable. While the proposal therein sought to extend the
rights of smokers and the proposal in this case seeks to extend
the rights of nonsmokers, we find that the proposals are similar
in that they are not directly determinative of the rights of
nonbargaining unit employees. In that regard, the present
proposal would have an impact on managerial or other
nonbargaining unit employees only when they are having a meeting
in their office attended by nonsmoking bargaining unit employees.
Moreover, we note that the General Services Administration (GSA)
smoking regulations are intended to protect the health and safety
of all employees. While the proposals permit smokers to smoke
within their private offices, the proposals generally preclude
smoking in "public" areas. When employees are summoned to a
meeting in a manager's office, that office loses its privacy for
the duration of the meeting. A proposal seeking to protect the
rights of nonsmoking employees who are required to
attend such meetings is both consistent with the GSA regulations
and with our standard, set forth in American Federation of
Government Employees, Local 32, AFL - CIO and Office of Personnel
Management, 22 FLRA  478 (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) (proposals which
have only a limited or indirect effect on nonbargaining unit
employees are within the duty to bargain).

     V. Order

     The Agency must bargain, upon request or as otherwise agreed
to by the parties, over the proposal. 1

     Issued, Washington, D.C., November 12, 1987.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY 


FOOTNOTES

     Footnote 1 In finding this proposal to be negotiable, we
make no   judgment as to its merits.