32:0182(31)NG - - NTEU and IRS, Los Angeles District - - 1988 FLRAdec NG - - v32 p182



[ v32 p182 ]
32:0182(31)NG
The decision of the Authority follows:


32 FLRA No. 31

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

NATIONAL TREASURY EMPLOYEES UNION
Union

and Case 

INTERNAL REVENUE SERVICE
LOS ANGELES DISTRICT
Agency

No. 0-NG-1482

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 multipart proposal regarding dividing the workplace into smoking and nonsmoking areas and the acquisition of "smokeeaters" and floor to ceiling partitions needed to accomplish this task. We find Sections B, C, D and E to be negotiable for the reasons set forth below. We dismiss the appeal as to Sections A and F because the Agency did not allege that they were nonnegotiable.

II. Proposal

Designated Smoking Area

A. Break/Lunch room(s) will contain areas which are designated as smoking and nonsmoking areas. The employer will provide an air purifying/filtering system for all such areas.

B. Private offices, individual desks, and/or work stations shall be designated as cigarette smoking areas at the request of the employee. Any area so designated shall be identified by appropriate signs.

C. To the maximum extent possible, the employer shall separate smokers and nonsmokers in the work area.

D. The employer shall provide an approved air purifier for each such office, desk, and/or work area designated as a smoking area. An approved air purifier shall be determined by mutual consent from among those listed as above average in smoke and dust removal by January 1985 issue of CONSUMER REPORTS (as reported in the 1985 "Buying Guide Issue"). The employer shall provide proper maintenance and replacement parts.

E. Management will install floor to ceiling partitions between smoking and nonsmoking areas.

F. Management will make reasonable accommodation for employees who prefer or object to smoking.

III. Positions of the Parties

The Agency does not allege that Section A is nonnegotiable. Rather, the Agency indicates that it is willing to discuss Section A with the Union subject to decisions of the Comptroller General regarding the expenditure of appropriated funds.

The Agency contends that Sections B through E of the proposal are nonnegotiable because they are inconsistent with the Federal Property Management Regulations 41 C.F.R. § 101-20.105-3. This regulation governs smoking in General Services Administration (GSA) controlled buildings. In addition, the Agency contends that Sections B through E are nonnegotiable for the following reasons. Section B is nonnegotiable because it concerns the working conditions of nonunit employees because no unit employee occupies a private office. Section C is nonnegotiable because it interferes with the Agency's right under section 7106(b)(1) of the Statute to determine the technology, methods and means of performing work. Section D is nonnegotiable because it: (1) is inconsistent with decisions of the Comptroller General regarding the expenditure of appropriated funds; (2) concerns the working conditions of nonunit employees because no unit employee occupies a private office; and (3) interferes with the Agency's right under section 7106(b)(1) to determine the technology, methods and means of performing work. Section E is nonnegotiable because it interferes with the Agency's right under section 7106(a)(1) to determine its budget and with the Agency's right under section 7106(b)(1) to determine workspace design in relationship to the accomplishment of its mission.

The Agency does not allege that Section F is nonnegotiable. Instead, the Agency states that it is willing to discuss the accommodations of nonsmokers under the GSA regulation, but that Section F lacks sufficient meaning for negotiation.

The Union contends that the intent of the proposal is to divide the workplace into smoking and nonsmoking areas in a manner which will not impermissibly interfere with management's rights. According to the Union, the proposal would allow smoking employees to continue to perform their duties while smoking. The Union asserts that the proposal is also intended to provide as smoke-free a work environment as possible for nonsmoking employees by: (1) physically separating them from smokers with floor to ceiling partitions; and (2) filtering smoke-filled air in the smoking area with mutually agreed upon air purifiers or "smokeeaters."

IV. Analysis and Conclusion

A. The Petition for Review as to Sections A and F is Dismissed

The Agency does not allege that either Section A or F is nonnegotiable. Rather, it indicates that it is willing to discuss Section A with the Union subject to decisions of the Comptroller General regarding the expenditure of appropriated funds. As to Section F, the Agency states that it is willing to discuss the means of accommodating employees in accordance with GSA regulations even though it views the language of Section F as "too vague to be included in a binding agreement."

Under section 2424.1 of the Authority's Rules and Regulations, we consider a petition for review of a negotiability issue only when the parties are in dispute as to whether a proposal is inconsistent with law, rule or regulation. There are no issues before us as to whether Sections A and F are inconsistent with law, including the Statute, rule, or regulation. Therefore, we have no issues to consider as to Sections A and F in this negotiability proceeding. The conditions governing review of negotiability issues, as described in section 2424.1 of our regulation have not been met. Therefore, we will dismiss the Union's petition for review as to Sections A and F, without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal. American Federation of Government Employees, Local 12, AFL-CIO, and Department of Labor, 26 FLRA 768 (1987).

B. Sections B and D Concern Conditions of Employment of Unit Employees

The Agency argues that Sections B and D concern the conditions of employment of nonbargaining unit employees since no bargaining unit employees occupy private offices. Therefore, the Agency asserts these sections are nonnegotiable.

In Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236-37 (1986) (Antilles), the Authority set forth the test for determining whether a proposal involves a condition of employment of bargaining unit employees under section 7103(a)(14). The test contains two factors:

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 working conditions of

those employees. [Emphasis in original.]

For the following reasons, we conclude that Sections B and D satisfy both prongs of the Antilles test.

1. Sections B and D Pertain to Bargaining Unit Employees

In Antilles, 22 FLRA at 237, we stated the following about the first prong of the test to determine whether a proposal involves conditions of employment of unit employees:

For example, as to the first factor, the question of whether the proposal pertains to bargaining unit employees, a proposal which is principally focused on nonbargaining unit positions or employees does not directly affect the work situation or employment relationship of bargaining unit employees. But, a proposal which is principally focused on bargaining unit positions or employees and which is otherwise consistent with applicable laws and regulations is not rendered nonnegotiable merely because it would have some impact on employees outside the bargaining unit. (Citations omitted.)

In determining whether a proposal's impact on nonunit employees is sufficient to make the proposal nonnegotiable, the union's right to negotiate over conditions of employment of unit employees is balanced against the agency's right to determine the conditions of employment of nonunit employees. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA 478 (1986) (OPM), petition for review filed sub nom. American Federation of Government Employees v. FLRA, No. 86-1447 (D.C. Cir. Aug. ll, 1986). A proposal which has only an indirect effect on the working conditions of nonunit employees is negotiable. Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA 352, 352 (1987) (Proposal 1). A proposal which has a direct and significant effect on vital interests of nonunit employees is nonnegotiable. American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 25 FLRA 979 (1987) (Member Frazier dissenting).

The record does not reflect that Sections B and D are intended to apply to any employees other than members of the bargaining unit. Furthermore, the Union states that the entire proposal applies only to bargaining unit employees.

The Agency argues, however, that there are no bargaining unit employees who work in private offices and, therefore, the Union lacks authority to negotiate conditions for employees with private offices. The Union contends, on the other hand, that there are unit employees who work in private offices, and, in any event, the proposal is only intended to apply to unit employees. The Union further notes that the Agency has not indicated how many, if any, nonunit employees would be affected by the proposal.

The parties are in dispute as to whether unit employees have private offices. The Union, however, clearly indicates that Sections B and D only apply to unit employees, and permit unit employees to smoke at their work stations. At the same time, unit employees who are nonsmokers are protected. Sections B and D are not directly determinative of the conditions of employment of nonunit employees. Consequently, these sections do not apply to nonunit employees who have private offices and do not limit the Agency's ability to determine the conditions under which nonunit employees will or will not be allowed to smoke.

Consequently, we find that Sections B and D satisfy the first prong of the Antilles test. These sections are principally focused on bargaining unit employees and do not affect nonunit employees.

2. Sections B and D Directly Affect the Working Conditions of Unit Employees

In evaluating the nature and extent of effect of proposals on unit employees' working conditions, we must consider whether there is a "direct connection between a proposal and the work situation or employment relationship of bargaining unit employees." Antilles, 22 FLRA at 237.

We previously have determined that proposals concerning the implementation of an agency's smoking policy involve conditions of employment of bargaining unit employees. See National Treasury Employees Union and Internal Revenue Service, Indianapolis District, 30 FLRA 32 (1987); American Federation of Government Employees, Local 2324, AFL-CIO and Department of the Army Headquarters, 1st Infantry Division, Fort Riley, Kansas, 27 FLRA 33 (1987); National Association of Government Employees, Local R14-32 and Department of the Army, Fort Leonard Wood, Missouri, 26 FLRA 593 (1987).

Sections B and D are aimed at unit employees and involve allowing unit employees to smoke at their work stations while at the same time protecting unit employees who are nonsmokers. Sections B and D concern the implementation of the Agency's smoking policy as it applies to unit employees. Therefore, based on the cases cited above, Sections B and D directly affect the working conditions of unit employees. Accordingly, Sections B and D satisfy the second prong of the Antilles test.

C. Sections B Through E Do not Conflict with a Government-wide Regulation or with Decisions of the Comptroller General

The Agency contends that Sections B, C, D and E conflict with 41 C.F.R. § 101-20.105-3, a regulation which all parties agree is a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. The Agency argues that Section B and C of the Proposal violate 41 C.F.R. § 101-20.105-3(b)(1), which prohibits smoking in general office space except as permitted under paragraph (c)(2)(iii) of the regulation when the "office space is configured so as to limit the involuntary exposure of nonsmokers to secondhand smoke to a minimum."

We conclude that Sections B and C are not inconsistent with 41 C.F.R. § 101-20.105-3(b)(1) and (c)(2)(iii). That regulation prohibits smoking in general office space unless the "office space is configured so as to limit the involuntary exposure of nonsmokers to secondhand smoke to a minimum." Sections B and C would require the Agency to establish an office configuration which limits nonsmokers' exposure to smoke by placing nonsmokers in nonsmoking sections, offices, etc. In addition, Sections D and E require the installation of partitions between the smoking and nonsmoking office areas, as well as the installation of "smokeeaters" to supplement the existing ventilation systems. The installation of the partitions and "smokeeaters" in conjunction with separate smoking and nonsmoking sections would result in an office configuration which would reduce involuntary exposure to smoke to a minimum. Thus, we find that Sections B and C are consistent with the GSA regulation.

Furthermore, the Agency contends that Sections D and E of the proposal are inconsistent with Government-wide smoking regulations and Comptroller General decisions because they would require management to expend funds to accommodate the preference of nonsmoking employees by installing partitions and air purifiers. The Agency relies on 41 C.F.R. § 101-20.105-3(f), which states that "An agency is not required by this regulation to make any expenditures for structural or nonstructural changes to accommodate the preference of nonsmoking employees."

We find no inconsistency between Sections D and E and the Government-wide smoking regulation. While 41 C.F.R. § 101-20.105-3(f) does not require the expenditure of funds, it does not prohibit such expenditures either. Therefore, the Agency has the discretion to decide whether such expenditures may be made. To the extent that an agency has discretion with respect to a matter affecting the conditions of employment of its employees, that matter is within the agency's duty to bargain. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983); National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980). Therefore, the Agency has an obligation to bargain with the Union concerning the purchase and use of floor to ceiling partitions and "smokeeaters" in order to establish smoking and nonsmoking sections within the Agency.

Further, the Agency, without disputing that all employees will benefit from the air purifiers, claims that the proposal is inconsistent with Comptroller General decisions concerning the expenditure of appropriated funds for air purifiers. However, we find that the Comptroller General's decisions permit the purchase of air purifiers or "smokeeaters" for the purposes advanced by the Union.

In Department of Interior, 64 Comp. Gen. 789 (1985) and Department of Interior, 62 Comp. Gen. 653 (1983), the Comptroller General ruled that air purifiers could be purchased with appropriated funds where they are intended to and will provide a generalized benefit to all employees working in the area. The expenditures of funds as proposed by the Union would provide a benefit, by reducing smoke in the work place, not only for employees working in the area but also to members of the public who make use of the Agency's facilities. The Agency has provided no evidence to the contrary. Therefore, we find that Sections D and E are not inconsistent with applicable Comptroller General decisions.

D. Sections C, D and E Do Not Concern Methods, Means or Technology of Performing Work

The Agency claims that Sections C and E interfere with the Agency's right to determine the technology, methods and means of performing its work because these sections require that: (1) employees be grouped not by their "primary function" but by their smoking preference; and (2) office space be altered by adding floor to ceiling partitions between smoking and nonsmoking areas.

The Union indicates, however, that the intent of Sections C and E is that the Agency's organization by primary functions will not be disrupted. Rather, smoking and nonsmoking sections would be established within each Agency-established "primary function." The Union's statement of intent is consistent with the plain wording of these sections and is adopted for the purposes of this decision.

In order to sustain a claim that a proposal concerning conditions of employment is negotiable only at the election of management because it directly interferes with management's right to determine the "technology, methods, and means" used in performing work, an agency must establish: (1) the technological relationship of the proposal to work; and (2) how the proposal would interfere with the purpose for which the technology was adopted. American Federation of Government Employees, AFL-CIO, National Council of Social Security Field Office Locals and Department of Health and Human Services, Social Security Administration, 24 FLRA 842, 846-47 (1986). "Means" refers to any instrumentality, including an agent, tool, device, measure, plan or policy used by an agency for the accomplishing or furthering of the performance of its work. National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046, 1072 (1987), petition for review filed sub nom. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. Mar. 28, 1988). "Method" refers to the way in which an agency performs its work. National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270 (1983). The term "performing work" is intended to include those matters which directly and integrally relate to the Agency's operations as a whole. Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and American Federation of Government Employees, Local 1533 and Department of Navy, Navy Commissary Store Region, Oakland, and Navy Commissary Store, Alameda, California, 25 FLRA 465 (1987).

When an agency asserts that a proposal concerning office space selection interferes with its right to determine the technology, methods and means of accomplishing its work, the agency must demonstrate that its choice of office space design has a technological relationship to accomplishing its work, and the union proposal would interfere with the purpose for which the office space design was adopted. Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and Naval Underwater Systems Center, Newport, Rhode Island, 28 FLRA 352, 352-55 (1987) (Proposal 1).

The Agency has not demonstrated that dividing its "primary function" areas into smoking and nonsmoking segments and placing floor to ceiling partitions between the segments would have an impact on the work performed in those areas. The Agency asserts that its existing office space design encompasses separate work areas for revenue officers and office collection representatives. The Agency does not assert, however, that the work performed within those areas depends in any way on whether employees who smoke are separated from those who do not. Therefore, even assuming that the Agency had established a technological relationship between its "primary function" areas and the work performed, the Agency has not shown how Sections C and E of the proposal would interfere with the purpose of the "primary function" areas or that changing the design of the office space by adding partitions to separate the smoking and nonsmoking segments would interfere with the work performed. Thus, the Agency has not established that Sections C and E would interfere with the technology, methods and means of performing its work.

Section D provides that the Agency shall provide an air purifier for each office, desk, and/or work area designated as a smoking area. The Agency makes no specific claim that Section D would interfere with its right under section 7106(b)(1) to determine the technology, methods and means of performing its work. Rather, the Agency merely argues that because Section D incorporates by reference Sections B and C, Section D is nonnegotiable for the same reasons. However, the Agency has not established how providing an air purifier for each office, desk, and/or work area designated as a smoking area would interfere in any manner with the technology, methods, and means of performing the Agency's work. Accordingly, we find that the Agency has not established that Section D would interfere with the Agency's right under section 7106(b)(1) to determine the technology, methods and means of performing its work.

E. Section E Does Not Interfere with the Agency's Right to Determine Its Budget

Finally, the Agency contends that Section E of the proposal, by requiring the expenditures of funds, interferes with its right to determine its budget under section 7106(a)(1) of the Statute. We concluded in National Treasury Employees Union and Internal Revenue Service, 27 FLRA 132 (1987) (IRS), and cases cited therein, that a proposal is inconsistent with an agency's right to determine its budget if it prescribed a particular program or an amount of funds to be included in the agency's budget or if the agency made a substantial demonstration that the proposal would result in a significant and unavoidable increase in costs which would not be offset by compensating benefits.

Section E does not prescribe a particular program or amount of funds to be included in the Agency's budget. Further, the Agency has not demonstrated that the installation of partitions or "smokeeaters" would result in a significant and unavoidable increase in costs which would not be offset by compensatory benefits. In fact, the Agency does not even estimate what the cost will be to complete the changes called for by the proposal. Accordingly, the Agency has failed to establish that Section E interferes with its right to determine its budget.

In conclusion, we find that a negotiability dispute does not exist as to Sections A and F of the proposal. We also find Sections B, C, D and E to be negotiable.

V. Order

The Agency must bargain, upon request or as otherwise agreed to by the parties, over Sections B, C, D, and E.(*) The petition for review as to Sections A and F is dismissed without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal.

Issued, Washington, D.C.,

____________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY




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