31:1110(91)NG - AFGE Local 3369 and SSA, Cypress Hills District Office -- 1988 FLRAdec NG



[ v31 p1110 ]
31:1110(91)NG
The decision of the Authority follows:


 31 FLRA NO. 91
    31 FLRA 1110 (1988)
     
 31 MAR 1988


AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL 3369

                   Union

      and

SOCIAL SECURITY ADMINISTRATION
CYPRESS HILLS DISTRICT OFFICE

                   Agency

Case No. 0-NG-1486

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)(E) of the Federal Service
Labor - Management Relations Statute (the Statute) and concerns
the negotiability of a single proposal which would allow
employees a working smoke break. For the following reasons, we
find the proposal to be negotiable.

     II. Proposal

     Employees shall be allowed, consistent with U.S.C. 7106
A1-2, working smoke intervals between the earliest break and
lunch, lunch and the latest break, and dismissal during the
regular tour.

     III. Positions of the Parties

     The Agency did not file a statement of position in this
case. In a written statement to the Union, the Agency, without
supporting arguments, declared the proposal nonnegotiable for the
following reasons:

     (1) It interferes with management rights to assign work and
direct employees under section 7106(a)(2)(A) and (B) of the
Statute;

     (2) It interferes with management's right to determine the
methods and means of performing work under section 7106(b)(1) of
the Statute; and

     (3) The April 27, 1987 Memorandum of Understanding (MOU)
between the Social Security Administration (SSA) and the American
Federation of Government Employees General Committee (AFGE)
limited such local negotiations to bargaining solely over the
configuration of designated smoking areas.

     The Union contends that the proposal provides a Working
Smoke Interval for employees who smoke. The Union defines the
Working Smoking Interval as "an interval in the normal workday,
analogous to using the restroom(s) or getting a drink of water,
wherein an employee who wishes to smoke may do so in a designated
smoking area while continuing his/her work." In this light, the
Union alleges that the work being done requires no special or
particular location for its completion. Further, the Union
contends that under this proposal, management retains the right
to allow or disapprove this action by employees.

     IV. Analysis and Conclusion

     The issue in this case is whether unit employees may leave
their designated work areas in order to smoke in the designated
smoking areas at times other than employees' lunch periods or
rest periods.

     The Agency contends that the proposal interferes with its
right to assign work and direct employees within the meaning of
section 7106(a)(2)(A) and (B) of the Statute and its right to
determine the methods and means of performing operations within
the meaning of section 7106(b)(1) of the Statute. We disagree.

     The Union states that this proposal would permit employees
who "wish, desire, or have need to smoke at times other than
their lunch or contractual rest periods to do so in the
designated smoking area while bringing work to the area in order
to maximize Government time." We have held that the location at
which employees perform the normal duties of their jobs is
negotiable unless a relationship exists between the job
location and the job duties. See International Plate Printers,
Die Stampers and Engravers Union of North America, AFL - CIO,
Local 2 and Department of the Treasury, Bureau of Engraving and
Printing, Washington, D.C., 25 FLRA  113, 115-16 (1987)
(Provision 4) and American Federation of Government Employees,
AFL - CIO, and Air Force Logistics Command, Wright - Patterson
Air Force Base, Ohio, 5 FLRA  83 (1981).

     The Agency has made no showing that the Proposal in any
manner is inconsistent with its right to assign and direct
employees and to determine the methods and means of operating. We
note that the Agency did not file a statement of position and
provided no supporting arguments in its allegation of
negotiability. Furthermore, the Agency has not shown that the
nature of the employees' jobs would prevent them from working in
the designated smoking area.

     Further, even if the employees did not take any work with
them to the designated smoking area or if they did not perform
any work while taking a smoking break, this proposal would be
negotiable. The Proposal states that smoking breaks shall be
allowed, "consistent with U.S.C 7106 A1-2." We assume the
Proposal is referring to section 7106(a)(1) and (2) of the
Statute which sets forth management's rights, including the right
to assign work and direct employees. Therefore, the granting or
denial of breaks for smoking would be subject to work needs. The
Union states that the intent of the Proposal is to give the
Agency the right to turn down an employee's request for a smoking
break if necessary. The Authority has held that whether to grant
"breaks" is a matter which is subject to negotiation when, as
here, the relevant proposal would not require the Agency to grant
an employee's request where mission needs dictated otherwise. See
American Federation of Government Employees, Local 3342, AFL -
CIO and Department of Health and Human Services, Social Security
Administration, 19 FLRA  1100 (1985) and cases cited therein.
Accordingly, the proposal does not interfere with the Agency's
rights under section 7106(a)(2)(A) and (B) and section 7106(b)(1)
of the Statute.

     The Agency argues that the April 27, 1987 Memorandum of
Understanding executed by the Social Security Administration and
the American Federation of Government Employees limited
negotiations to bargaining solely over the configuration of
designated smoking areas. The Agency has not presented any
evidence to substantiate its allegation or divulge the nature
of the negotiation of the Memorandum of Understanding.
Further, the Agency has not provided us with a copy of the
Memorandum of Understanding. Consequently, we have no basis to
determine what bearing, if any, the Memorandum of Understanding
would have on the Proposal. Therefore, based on the facts before
us whether the Memorandum of Understanding limits negotiations on
the Proposal is not appropriately resolved in this negotiability
appeal. Rather, issues regarding the meaning and applicability of
the Memorandum of Understanding should be resolved in another
forum, such as an unfair labor practice proceeding.

     Therefore, based on the above analysis, we find the union's
proposal to be negotiable.

     V. Order

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

     Issued, Washington, D.C., March 31, 1988

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTH