31:1114(92)NG - AFGE Local 3369 and SSA, Midtown District Office -- 1988 FLRAdec NG



[ v31 p1114 ]
31:1114(92)NG
The decision of the Authority follows:


31 FLRA NO. 92

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3369

                  Union

        and

SOCIAL SECURITY ADMINISTRATION
MIDTOWN DISTRICT OFFICE

                  Agency

                                   Case No. 0-NG-1498

     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 to have "Working Smoke Intervals" during the day. For
the following reasons, we find that the conditions for review of
negotiability issues have not been met and dismiss the Union's
petition for review.

     II. Proposal

     We seek to have management return to the past practice-that
     is, prior to the new Federal regulations and the MOU on smoking
     all employees were free to smoke, if they so chose, at any time
     during the workday. The new Federal regulations and MOU on
     smoking have, thusly, not changed anything other than the
     location in which employees may now smoke.

     All employees shall be allowed to smoke in designated
     smoking areas outside of lunch and regular break periods, for
     reasonable period(s) of time.

     Employees shall be allowed 'Working Smoke Intervals' between
     early break and lunch, lunch and late break, late break and
     dismissals during a regular work tour.

     III. Positions of the Parties

     The Agency's statement of position was untimely filed and
has not been considered in this case. In a written statement to
the Union, the Agency stated that the issue of smoking breaks or
intervals was "compromised" at the national level and, therefore,
it did not have any obligation to bargain at the local level on
the issue. The Agency did not declare the Proposal to be
nonnegotiable.

     The Union contends that the proposal provides a Working
Smoke Interval for employees who smoke. The Union defines the
Working Smoke 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 states that it wishes to return to the past practice which
was in effect prior to the new Federal Regulations and the
Memorandum of Understanding (MOU) between the Social Security
Administration (SSA) and the American Federation of Government
Employees General Committee (AFGE) that all employees were free
to smoke during the workday. It contends that the only change
mad