30:0032(8)NG - NTEU and IRS, Indianapolis District -- 1987 FLRAdec NG
[ v30 p32 ]
The decision of the Authority follows:
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.