26:0593(73)NG - NAGE, Local R14-32, and Army, Fort Leonard Wood, Mo. -- 1987 FLRAdec NG



[ v26 p593 ]
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) o