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39 FLRA No. 9

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF HEALTH AND HUMAN SERVICES

HEALTH CARE FINANCING ADMINISTRATION

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1923, AFL-CIO

(Charging Party/Union)

3-CA-80303

DECISION AND ORDER

January 28, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge. The Judge found that the Respondent violated section 7116(a)(1), (5), (6), and (7) of the Federal Service Labor-Management Relations Statute (the Statute) by (1) unilaterally implementing a total ban on smoking in violation of an existing Memorandum of Understanding (MOU) at a time when the matter was pending before the Federal Service Impasses Panel (the Panel); and (2) attempting to negate and/or nullify the terms of the MOU on the basis of a subsequently-issued regulation. The Respondent filed exceptions to the Judge's recommended decision. The General Counsel filed an opposition to the Respondent's exceptions.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudical error was committed. The rulings are affirmed. After consideration of the Judge's Decision, the exceptions, the opposition and the entire record, we agree with the Judge's conclusions that the Respondent violated section 7116(a)(1), (5), (6), and (7) of the Statute.

II. Background

During the Fall of 1986, the Charging Party and the Respondent exchanged proposals for the establishment of a ban on smoking in buildings in Baltimore, Maryland and Washington, D.C. where the Respondent's employees were located. On November 21, 1986, the parties reached an agreement on a smoking policy and executed an MOU.

The MOU stated in relevant part:

[T]he [Respondent] and the Union hereby agree to the following policy:

. . . .

SECTION 2

A. Beginning immediately and over the coming months, the [Respondent] and the Union agree to initiate specific efforts designed to provide a total smoke-free environment in all HCFA-occupied buildings.

B. As a[n] interim policy, smoking in HCFA-designated buildings will be limited to those areas specifically identified as "Designated Smoking Areas."

. . . .

SECTION 7

The parties agree that 12 months from the date of this Agreement, either party with a 15-day written advance notice may reopen this Agreement.

SECTION 8

This policy shall become effective 90 days after the signature of both parties to this agreement, and may be changed/modified only by mutual consent.

Joint Exhibit 4(a).

The MOU was incorporated into the parties' Master Agreement. In February 1987, the smoking ban went into effect for work areas and designated smoking areas were opened in each of the Respondent's buildings.

On October 30, 1987, the Respondent notified the Union that pursuant to Section 7 of the MOU, it was exercising its option to reopen the agreement. On December 14 and 16, 1987, the parties bargained pursuant to the reopener provision. At those bargaining sessions, the Respondent's chief negotiator "emphasized how it was important for her to reach an agreement with the Union on an ending date for smoking at HCFA during calendar year 1988." Judge's Decision at 4-5. The chief negotiator "made it clear to the Union negotiators that she was willing, in order to reach agreement with the Union on [a] date certain to end smoking, to entertain other matters of importance to the Union which were unrelated to the smoking issue." Id. at 4. The Respondent's chief negotiator related that the Respondent's Administrator "wanted to leave Government with a smokeless HCFA." Id. at 5. The Respondent also asserted that the Union had "agreed at a meeting with [the Administrator] on November 19, 1986, that if the Agency, in 6, 12 or 18 months, came forward with a total ban on smoking, the Union would support it." Id. at 6. The Union's negotiators contended that they had not made such an agreement.

In the bargaining session on December 16, 1987, the Union proposed to continue the designated smoking areas. The Respondent's chief negotiator "reiterated her offer to deal with matters of importance to the Union which were not directly connected with smoking and again told the Union to develop its 'wish list' because she was willing to buy an agreement containing the wish list items as long as such agreement provided for termination of smoking in calendar year 1988." Id.

On or about December 18, 1987, the parties met again and bargained over the "wish list" developed by the Union negotiators. Id. The parties discussed a May 15, 1988, target date for a total ban on smoking and tentatively agreed that the Union would be given "the first opportunity in January 1988 to communicate with its unit members on this issue in order to sell the smoking ban." Id. The parties also discussed how the smoking ban would operate and matters pertaining to employee access to areas outside the buildings for smoking.

In several subsequent sessions, on or about December 27, 1987, and January 6, January 25, and February 25, 1988, the bargaining continued. During these sessions, the Respondent changed its position on which items on the Union's "wish list" it could agree to. Id. at 7. Subsequently, a mediator from the Federal Mediation and Conciliation Service was called in by the parties to assist with bargaining. On March 8, 1988, the mediator declared the parties at impasse. That same day, the Union prepared a request for Panel assistance and served it on the Respondent. In its request to the Panel, the Union stated that "[t]he primary unresolved issue is the continued use of the designated smoking areas and the quality of maintenance of those areas[.]" Joint Exhibit 10.

By memorandum dated March 9, 1988, to all employees, the Agency announced that effective March 15, 1988, the Agency was "instituting a total ban on smoking in all HCFA-occupied buildings" and that "[t]he designated smoking areas [would] be closed permanently on that date." Joint Exhibit 11. The Union did not receive a copy of the March 9 memorandum nor did the Respondent mention the March 15 ban at the parties' March 8 bargaining session. The Union learned of the memorandum from unit employees who were upset with the closure of the smoking areas.

By letter dated March 11, 1988, to the parties, the Panel acknowledged the Union's request for assistance. On March 11, 1988, the Union filed the unfair labor practice charge in this case with the General Counsel. On March 15, the Respondent implemented its total smoking ban.

On March 17, the Respondent requested that the Panel decline jurisdiction over the parties' bargaining impasse. The Respondent "raised for the first time the claim that its no-smoking policy was 'mandated by the compelling need to implement'" General Administration Manual chapter 1-60, the Department of Health and Human Services' (DHHS) regulation on smoking. Judge's Decision at 8. That regulation, issued on August 25, 1987, required the establishment of a smoke-free environment in all DHHS buildings.

By letter dated March 21, 1988, the Union informed the Panel that the Respondent had never raised compelling need during the parties' bargaining that had resulted in impasse. The Union further advised the Panel that the August 25, 1987, DHHS regulation specifically provided that it was to be implemented "'consistent with the requirements of 5 U.S.C. Chapter 71 and provisions of negotiated agreements.'" Id.

By letter dated March 30, 1988, to the Panel, the Respondent argued that "its March 15 total smoking ban was based on the DHHS . . . policy issuance which is an agency-wide regulation for which a compelling need exists." Id. The Respondent asserted that because a "'threshold question of nonnegotiability'" had been raised, the Panel was required to decline jurisdiction. Id. at 9. On March 31, 1988, the Panel declined jurisdiction.

III. The Administrative Law Judge's Decision

The Judge found that the Respondent violated section 7116(a)(1), (5), (6), and (7) of the Statute by unilaterally implementing a total ban on smoking in the Respondent's buildings at a time when the matter was before the Panel.

The Judge first concluded that the Respondent's implementation of a total ban on smoking on March 15, 1988, violated section 7116(a)(1), (5), and (6) of the Statute. The Judge credited the testimony of the Union's negotiators that "while they were amenable to a total ban on smoking in the future they had never agreed on a date certain for the ban." Judge's Decision at 11. The Judge noted that the MOU (1) did not include a specific date for a ban on smoking and (2) merely provided for either party to reopen the MOU for further negotiations 12 months after the execution of the agreement. The Judge also found that Respondent recognized its bargaining obligation by soliciting a "wish list" from the Union. Id.

In addition, the Judge noted that implementation of the ban on smoking occurred at a time when "the matter was before the . . . Panel for resolution." Id. at 12. The Judge found that, prior to implementing any changes in the smoking policy contained in the MOU, the Respondent was obligated to bargain with the Union until agreement or impasse was reached. Accordingly, the Judge concluded that implementation of the ban on smoking constituted (1) a repudiation of the MOU, in violation of section 7116(a)(1) and (5) of the Statute; and (2) a failure to cooperate in impasse procedures or decisions, in violation of section 7116(a)(1) and (6) of the Statute.

The Judge also found that the Respondent violated section 7116(a)(1) and (7) of the Statute by relying on the DHHS regulation as a basis for a total ban on smoking. The Judge noted that the Respondent stated in its March 30, 1988, submission to the Panel that implementation of the no-smoking policy was mandated by a compelling need to implement the DHHS regulation which requires the establishment of a smoke-free environment in all DHHS buildings. Id. The Judge concluded that the Respondent's reliance on the regulation, which was issued subsequent to the parties' execution of the MOU, constituted a total repudiation of the MOU. Therefore, the Judge concluded that the Respondent violated section 7116(a)(1) and (7) of the Statute.

Finally, the Judge stated the following:

[I]nasmuch as the Authority in a prior case has already ruled that there is no compelling need for the DHHS regulation involved herein, I find that the issue has already been decided by the Authority and that I am not estopped from considering the merits of the change irrespective of the fact that Respondent has again raised "compelling need" as justification for its action.

Id. at 13. The Authority decision to which the Judge referred is National Treasury Employees Union, Chapter 250, and Department of Health and Human Services, Family Support Administration, Washington, D.C., 33 FLRA 61 (1988) (Family Support Administration). See Judge's Decision at 9. The Authority's decision in Family Support Administration was enforced by the United States Court of Appeals for the D.C. Circuit. Department of Health and Human Services, Family Support Administration v. FLRA, No. 88-1867 (D.C. Cir. Nov. 30, 1990) (HHS v. FLRA).

IV. Respondent's Exceptions

The Respondent raises five exceptions to the Judge's decision:

1. The Respondent argues that the Judge erred in not finding that the MOU "constituted a substantive agreement establish [sic] a permanent policy of a smoke-free environment in Respondent's building space." Respondent's Exceptions at 1. The Respondent contends that the Judge failed to recognize that the Respondent's only bargaining duty was to bargain on the impact and implementation of the smoke-free policy that the parties had agreed to in the MOU. Respondent's Brief at 16.

2. The Respondent contends that the Judge erred in failing to dismiss the complaint. The Respondent asserts that "[w]here the essence of a charged refusal to bargain in good faith is such that proof of the charge turns on 'differing and arguable interpretations' of an existing agreement, the Authority requires dismissal of the complaint." Respondent's Brief at 17 (citation omitted). The Respondent quotes the wording of the MOU that the parties "'agree to initiate specific efforts designed to provide a total smoke-free environment'" and argues that the wording makes it "more than 'plausible' or 'arguable' that the existing MOU precluded any duty to bargain further on the substance of agency smoking policy." Id. at 18.

3. The Respondent argues that it fulfilled its bargaining obligation because it afforded the Union an opportunity to bargain over impact and implementation of the agreed-upon, smoke-free policy. According to the Respondent, the Union chose to forego impact and implementation negotiations in lieu of negotiating on nonnegotiable "wish list" items. Id. at 19. Thus, the Respondent contends that it was free to implement the agreed upon smoke-free policy because the Union waived its right to bargain over impact and implementation of the permanent smoke-free policy.

4. The Respondent contends that the Judge erred in finding that the Respondent violated section 7116(a)(1) and (6) of the Statute by implementing the total smoking ban "while the Panel had before it the Union's request to resolve the nonnegotiable issue of permanent designated smoking areas." Id. at 26. The Respondent argues that the Union's petition to the Panel was "incompetent to invoke Panel jurisdiction" because it involved the nonnegotiable issue of permanent designated smoking areas. Id. at 27. The Respondent contends that the Union's proposal concerning permanent designated smoking areas was nonnegotiable because the parties had already mutually agreed to the establishment of a totally smoke-free environment in the MOU.

5. The Respondent argues that the Judge erred by failing to conclude that the MOU, rather than a subsequently-promulgated regulation, was the basis for implementation of the agreed-upon smoking policy. The Respondent asserts that the evidence establishes that it did not rely on the regulation to implement the smoking ban.

V. General Counsel's Opposition

The General Counsel asserts that the Respondent's exceptions express mere disagreement with the Judge's findings of fact that the parties had not previously agreed to a total ban on smoking and with his credibility determinations. The General Counsel argues that "[t]here is nothing within the four corners of the parties' November 21, 1986 MOU which provides for a total ban on smoking." Opposition at 1 (citation omitted). The General Counsel also asserts that the terms of the MOU "were to remain in effect until changed by negotiations." Id. at 2.

VI. Discussion

Based on our review of the record, we agree with the Judge's conclusions that the Respondent violated section 7116(a)(1), (5), (6), and (7) of the Statute.

A. Compelling Need

As a preliminary matter, we note the Judge's finding that he was not "estopped from considering the merits of the change irrespective of the fact that Respondent has again raised 'compelling need' as justification for its action." Judge's Decision at 13. For the following reasons, we conclude that we need not address this finding because our review of the record reveals that the Respondent does not argue before us that there is a compelling need, within the meaning of section 7117(a)(2) of the Statute, for the DHHS regulation which the Judge found was relied on by the Respondent to implement the ban on smoking. ^(*)

First, the Respondent does not except to the Judge's finding that he was not prevented from considering the merits of the change. Second, the Respondent does not address "compelling need" except in connection with its argument concerning the Judge's finding that it based implementation of the smoking ban on the regulation. In connection with that argument, the Respondent states as follows:

As a matter of policy and legal position, the Department decided to take the position that it has a compelling need for the rule. It is continuing to do so notwithstanding the Authority's rejection of the argument. See [Family Support Administration]. . . . However . . . the circumstances are such that there is too tenuous a connection between the Department-wide issuance and the actual implementation of a smoke-free policy in the case at bar to justify the ALJ's conclusion [that implementation was based on the regulation].

Respondent's Brief at 31 n.24.

It is clear from this statement that the Respondent did not abandon, in this case, the position it took in Family Support Administration. As noted previously, the Authority's decision in Family Support Administration that there is no compelling need for the DHHS regulation was enforced by the U.S. Court of Appeals for the D.C. Circuit. HHS v. FLRA, slip op. at 9. In our view, however, it is also clear from this statement that the Respondent is not defending its actions in this case on the basis of an alleged compelling need for the regulation at issue. In fact, the Respondent asserts that there is only a "tenuous" connection between the regulation and its implementation of the ban on smoking in this case.

Third and finally, the Respondent maintains that the Union's request for Panel assistance involved the "non-negotiable issue of permanent designated smoking areas." Respondent's Brief at 27. The Respondent does not, however, assert that the issue was nonnegotiable because the Union's proposal to retain designated smoking areas conflicted with a regulation for which a compelling need existed. Instead, the Respondent maintains that the "issue was non-negotiable because the . . . MOU had already established . . . that a complete smoke-free environment was the permanent agency policy[.]" Id.

Among other things, the Authority's Regulations require a party filing an exception to an Administrative Law Judge's decision to set forth the questions on which exceptions are taken and identify the portion(s) of the Administrative Law Judge's decision to which exception is made. 5 C.F.R. º 2423.27(a)(1) and (2). The Respondent's exceptions neither contest the Judge's finding concerning compelling need nor allege in any way that resolution of this case depends on determining whether there is a compelling need for the regulation which the Judge found was relied on in implementing the ban on smoking.

We conclude, therefore, that there is no issue before the Authority as to whether there is a compelling need for the regulation. Accordingly, we need not, and do not, address the Judge's finding on the issue of whether there is a compelling need for the DHHS regulation involved in the case.

B. Analysis of Exceptions

The Respondent's exceptions are based on its claim that the MOU contained a total ban on smoking. We find that the Judge's conclusion that the MOU did not contain a total smoking ban is supported by the Judge's credibility determinations and factual findings. Initially, we note that the Judge credited the testimony of the Union negotiators in finding that the Union did not agree to a smoking ban in the MOU. The Judge found that "while [the Union negotiators] were amenable to a total ban on smoking in the future they had never agreed on a date certain for the ban." Judge's Decision at 11.

The Authority will not reverse an ALJ's credibility determination "unless a clear preponderance of all the relevant evidence demonstrates that the determination is incorrect." Veterans Administration, Washington, D.C. and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 855, 856 n.* (1988). We have reviewed the entire record, and we find no evidence which would warrant reversing the Judge's credibility determinations.

It is well settled that a union's waiver of a statutory right must be clear and unmistakable. See, for example, U.S. Department of the Navy, United States Marine Corps (MPL), Washington, D.C. and Marine Corps Logistics Base, Albany, Georgia, et al., 38 FLRA No. 59, slip op. at 5 (1990). We agree with the Judge's conclusion that the wording of the MOU supports the conclusion that "while [the Union negotiators] were amenable to a total ban on smoking in the future they had never agreed on a date certain for the ban." Judge's Decision at 11. Additionally, we find that the Judge's conclusion that the MOU was not an agreement for a total ban on smoking is supported by his findings that (1) the MOU set forth "no specific date for a ban on smoking" and (2) the MOU provided an opportunity for either party to reopen the MOU for further negotiations. Id. We also agree with the Judge's conclusion that the Respondent's offer to negotiate with the Union on its "wish list" in return for agreement on a date in 1988 when smoking would be banned constituted a recognition that the MOU was not an agreement to ban smoking.

Based on these findings, we find that the MOU did not constitute a waiver of the Union's right to bargain over the Respondent's implementation of a smoking ban. Accordingly, we reject the Respondent's first and second exceptions, which assert that the Judge erred in failing to dismiss the complaint based on the express wording, or the Respondent's interpretation, of the MOU. See U.S. Department of the Army, Lexington-Blue Grass Army Depot, Lexington, Kentucky, 38 FLRA No. 60, slip op. at 11-12 (1990) (Administrative Law Judge rejected respondent's argument that it was not required to bargain over impact and implementation of a reduction in force based on provisions in parties' negotiated agreement). See also Rolla Research Center, U.S. Bureau of Mines, Rolla, Missouri, 29 FLRA 107, 115 (1987) (Rolla Research Center) (Authority found that the parties' agreement was "clear" and "unambiguous" and rejected the respondent's interpretation to the contrary).

In its third exception, the Respondent argues that the Judge should have found that the Respondent could implement the smoke-free policy because it gave the Union an opportunity to bargain over the impact and implementation of the agreement to ban smoking in the MOU. As noted above, we reject the Respondent's assertion that the MOU constituted an agreement to ban smoking. The MOU did not, therefore, provide a basis for Respondent's implementation of the ban on smoking. Instead, the Respondent was obligated to comply with the terms of the MOU until those terms were changed by the parties' agreement or direction of the Panel. Accordingly, we reject the Respondent's third exception and agree with the Judge that the Respondent's implementation of a total smoking ban constituted a repudiation of the MOU and violated section 7116(a)(1) and (5) of the Statute. See Rolla Research Center, 29 FLRA at 115.

The Respondent argues in its fourth exception that the Judge erred in finding a violation of section 7116(a)(1) and (6) of the Statute. The Respondent argues that the Union's petition "was incompetent to invoke Panel jurisdiction" because it involved the nonnegotiable issue of designated smoking areas. Respondent's Brief at 27. The Respondent maintains that the Union's proposal to retain designated smoking areas was nonnegotiable because:

[T]he . . . MOU had already established . . . that a complete smoke-free environment was the permanent agency policy, and the MOU left open for future negotiation only the details of impact and implementation of that policy following the "interim policy" of designated areas.

Id. In addition, according to the Respondent, the Union's request for Panel assistance "was not competent to invoke Panel jurisdiction because it concerned an issue about which, in fact, there had been no negotiations." Id. (emphasis in original). The Respondent claims that its negotiators "left no room for doubt about their position that . . . the reopening of the MOU was solely to implement" a ban on smoking and that the testimony of a Union negotiator that bargaining was not limited to impact and implementation of the policy "is simply not credible[.]" Id. at 27-28 & n.23.

Our review of the record provides no basis for overturning the Judge's finding that the Respondent violated the Statute when it implemented the ban on smoking. When the parties reached impasse, the Union submitted the disputed matters, including the Union's proposal that the designated smoking areas be retained, to the Panel. Significantly, as we found above, the Respondent is incorrect in arguing that "a complete smoke-free environment" was the established agency policy. Respondent's Brief at 27. Further, based on the Judge's findings, we disagree with the Respondent's contentions that the parties had not negotiated about the issues that the Union submitted to the Panel.

As the Union had submitted the disputed matters to the Panel, the Respondent was obligated to maintain the status quo to the maximum extent possible, that is, to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action it deemed appropriate. See, for example, Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 949-50 (1990). Failure to maintain the status quo, to the extent consistent with the necessary functioning of an agency, while a negotiation dispute is pending before the Panel violates section 7116(a)(1), (5) and (6) of the Statute. See id. at 951. See also, for example, Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985) (BATF).

The Respondent implemented the ban on smoking when the dispute was pending before the Panel. Accordingly, we find that, by this action, the Respondent violated section 7116(a)(1), (5) and (6) of the Statute. We note, in this regard, that the Judge found that the Respondent's implementation when the dispute was pending before the Panel violated only section 7116(a)(1) and (6) of the Statute. As the violation of section 7116(a)(5) is clear, however, and as the complaint in this case encompasses the finding of this violation, we will modify the Judge's findings to include this violation. See, for example, BATF, 18 FLRA at 472 (The Authority noted that as "the impasse resolution procedures of the Panel comprise one aspect of the collective bargaining process[,]" a failure to maintain the status quo while matters are pending before the Panel constitutes a violation of section 7116(a)(5)).

Finally, in its fifth exception, the Respondent argues that the Judge erred in finding that the Respondent relied on the DHHS regulation "as the basis for its decision to implement the no smoking ban which was tantamount to a complete repudiation of the existing MOU." Judge's Decision at 12. The Judge noted the Respondent's response to the Panel in which the Respondent stated "'[t]he [p]olicy is also mandated by the compelling need to implement the Department of Health and Human Services' (DHHS) General Administration Manual (GAM) Chapter 1-60 which requires the establishment of a smoke free environment in all DHHS buildings.'" Id.

The Respondent asserts that its statements about the necessity to implement the DHHS regulation were made in the context of Panel proceedings and are not "probative in the context of the case at bar." Respondent's Brief at 31. We disagree. In addition, we reject the Respondent's assertion that the "direct evidence . . . establishes that [the Respondent] relied on the agreement in the MOU to implement the policy of a smoke-free environment." Id. at 32. In our view, the Respondent has not demonstrated that the Judge's finding that the Respondent relied on the DHHS regulation in implementing the ban on smoking is erroneous.

Section 7116(a)(7) of the Statute provides that it is an unfair labor practice for an agency to:

enforce any rule or regulation (other than a rule or regulation implementing section 2302 of this title) which is in conflict with any applicable collective bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed[.]

The regulation on which the Respondent relied to implement a ban on smoking was promulgated after the parties agreed to the smoking policy in the MOU. Accordingly, we reject the Respondent's fifth exception and adopt the Judge's conclusion that the Respondent's implementation of the ban on smoking violated section 7116(a)(1) and (7) of the Statute.

In conclusion, we find that the Respondent's implementation of a ban on smoking, in reliance on a regulation issued subsequent to the parties' execution of a memorandum of understanding on the issue, while the dispute was pending before the Federal Service Impasses Panel violated section 7116(a)(1), (5), (6), and (7) of the Statute.

VI. Remedy

Having concluded that the Respondent's implementation of the ban on smoking while the dispute was pending before the Panel violated the Statute, we will order the Respondent to cease and desist from engaging in its unlawful actions and to take affirmative action, as required by the Judge's recommended order.

We note, in this regard, that the Judge's order required the Respondent to reinstate the designated smoking areas that were established pursuant to the MOU. Those smoking areas were eliminated, pursuant to the Respondent's unlawful actions, in March 1988. Whether, or to what extent, those areas are now properly available for designation as smoking areas is a matter to be resolved during the compliance stage of these proceedings. If, during compliance, it is determined that those areas are no longer available, it would be appropriate, in our view, to require the Respondent immediately to establish new designated smoking areas, provided the new areas are equal in number and comparable in size and location to those previously designated.

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Health and Human Services, Health Care Financing Administration shall:

1. Cease and desist from:

(a) Unilaterally changing conditions of employment established by the 1986 MOU by banning all smoking within the Department of Health and Human Services, Health Care Financing Administration buildings located in Washington, D.C. and Baltimore, Maryland.

(b) Effecting any changes in designated smoking areas or other conditions of employment at a time when an impasse in negotiations concerning such conditions of employment is pending before the Federal Service Impasses Panel.

(c) Attempting to nullify the terms of an existing collective bargaining agreement on the basis of a subsequently-issued regulation.

(d) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative actions in order to effectuate the purposes and policies of the Statute:

(a) Reinstate the designated smoking areas in the Department of Health and Human Services, Health Care Financing Administration buildings located in Washington, D.C. and Baltimore, Maryland which were established pursuant to the MOU dated November 21, 1986.

(b) Maintain the conditions of employment established by the MOU dated November 21, 1986, until such time as the parties negotiate and reach agreement on any proposed change therein and/or the matter of the proposed change is resolved on the basis of a submission to the Federal Service Impasses Panel.

(c) Post at its offices where unit employees are employed 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 Administrator of the Department of Health and Human Services, Health Care Financing Administration, and they 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 ensure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

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 NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally change conditions of employment established by the 1986 Memorandum of Understanding (MOU) by banning all smoking within the Department of Health and Human Services, Health Care Financing Administration buildings located in Washington, D.C. and Baltimore, Maryland.

WE WILL NOT effect any changes in designated smoking areas or other conditions of employment at a time when impasse in negotiations with the American Federation of Government Employees, Local 1923, AFL-CIO, the certified exclusive representative of our employees, is pending before the Federal Service Impasses Panel for resolution.

WE WILL NOT attempt to nullify the terms of an existing collective bargaining agreement on the basis of a subsequently-issued regulation.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL reinstate the designated smoking areas in the Department of Health and Human Services, Health Care Financing Administration buildings located in Washington, D.C. and Baltimore, Maryland which were established pursuant to the MOU dated November 21, 1986.

WE WILL maintain the conditions of employment established by the MOU dated November 21, 1986, until such time as the parties negotiate and reach agreement on any proposed change therein and/or the matter is resolved on the basis of a submission to the Federal Service Impasses Panel.

_______________________
(Activity)

Dated: ___________ 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, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500.

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

*/ The General Counsel also contends that "compelling need" is not an issue in this case. General Counsel's Opposition at 4 n*.

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