33:0105(14)CA

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33:0105(14)CA
The decision of the Authority follows:


33 FLRA No. 14

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED STATES MARINE CORPS

WASHINGTON, D.C.

and

MARINE CORPS FINANCE CENTER

KANSAS CITY, MISSOURI

and

MARINE CORPS CENTRAL DESIGN

AND PROGRAMMING ACTIVITY

KANSAS CITY, MISSOURI

and

MARINE CORPS RESERVE SUPPORT

CENTER, OVERLAND PARK, KANSAS

and

MARINE CORPS LOGISTICS BASE

ALBANY, GEORGIA

(Respondents)

and

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES

and

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 2317

and

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 2904

(Charging Parties)

7-CA-70370, 7-CA-70635, 74-CA-70637

DECISION AND ORDER

October 14, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This case is before the Authority on exceptions filed by the General Counsel and the Charging Parties to the attached Decision of the Administrative Law Judge. The Respondent filed oppositions to the exceptions.

The unfair labor practice complaint alleged that: (1) the Respondents violated section 7116(a)(1) and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing a new "no smoking" policy at a number of Marine Corps installations while the parties at the national level were at impasse before the Federal Service Impasses Panel (the Panel) on a national smoking policy; and (2) the Respondents violated section 7116(a)(1) and (5) of the Statute by implementing the new policy at the installations without providing the Charging Parties the opportunity to bargain over the substance, impact, and implementation of the change.

The Judge concluded that the Respondents did not violate the Statute and recommended that the consolidated complaint be dismissed. For the reasons discussed below, we agree with the Judge's conclusion and shall dismiss the consolidated complaint.

II. Facts

The American Federation of Government Employees (AFGE) is the certified exclusive representative of a national consolidated unit of certain nonprofessional employees of Respondent United States Marine Corps, Washington, D.C. (the Marine Corps). This bargaining unit includes the employees of the other named Respondents. The AFGE has delegated to the AFGE Council of Marine Corps Locals, Council 240 (the Council) the authority to represent the employees in the consolidated unit.

The Council and the Marine Corps are parties to a Master Labor Agreement (MLA). Article 4, Sections 1 and 2 of the MLA states as follows:

Article 4: Bargaining During the Term of the Agreement

Section 1 The employer will notify the council of policy changes originating above the activity level that give rise to a bargaining obligation under the statute. Where such changes originate at the activity level, the activity will notify the appropriate local union.

Section 2 Any bargaining that might result from changes initiated above the activity level will be accomplished by the employer and the council unless they mutually agree otherwise. Normally bargaining resulting from changes initiated at the activity level will be accomplished by the local parties, however, either party to this MLA retains the right to transfer such negotiations to the level at which the recognition exists.

Joint Exhibit 28.

In September 1986, the Marine Corps notified the Council of the Respondents' intent to implement the Tobacco Prevention Program (the Program) for unit employees on October 15, 1986. The purpose of the Program "is to raise awareness of the potential hazards of smoking and, while not prohibiting smoking in all areas, to encourage a healthy work environment for non-smokers and those employees who would like to quit." Joint Exhibit 9. The Program proscribes tobacco use in certain areas such as conference rooms and classrooms and authorizes commanding officers to designate smoking areas for personnel who desire to smoke. Smoking is not permitted in areas shared by nonsmokers unless, in the commanding officer's judgment, ventilation is adequate to provide a healthy environment. Joint Exhibit 3.

On September 25, 1986, the Council requested to bargain over the Program. Based on that request, the Marine Corps delayed implementation of the Program and the parties began negotiating a memorandum of understanding regarding implementation of the Program. The parties ultimately agreed on most of the issues in dispute. However, they disagreed over the procedure for designating the smoking areas at each Activity.

In accordance with the Program's requirements, an initial determination was required at each Activity concerning whether the ventilation was adequate to permit the designation of a smoking area inside each building. The Marine Corps proposed that each Activity Commander be provided with the discretion to designate the smoking areas after making a determination as to the adequacy of ventilation. In response, the Council proposed a guideline concerning adequate ventilation. When the Marine Corps rejected this proposal, the Council proposed that smoking areas should be negotiated at the local level. Judge's Decision at 9.

The Marine Corps refused to agree to this proposal because it wanted to complete all bargaining, including matters related to the designation of smoking areas, at the national level rather than engage in separate Activity-level negotiations. The Marine Corps advised the Council that the Council's proposal for local negotiation of the designation of the smoking areas conflicted with the portion of MLA Article 4, Section 2 which stated that "[a]ny bargaining that might result from changes above the Activity level will be accomplished by the employer and the council [that is, at the national level] unless they mutually agree otherwise." According to the Marine Corps, the Council's proposal for local negotiations conflicted with the MLA provision because the Tobacco Prevention Program was initiated above the Activity level.

After several discussions concerning this dispute in which the Marine Corps informed the Council as to its statutory, contractual, and practical reasons for not negotiating locally, the Marine Corps requested that the Union submit its final offer. The Union's final offer, dated March 30, 1987, included the following proposal:

SECTION V. DESIGNATION OF SMOKING AREAS

A. Prior to designating smoking areas, the Activity will meet and confer with the designated Union representatives over the new smoking areas and other appropriate arrangements consistent with the Memorandum of Understanding.

Judge's Decision at 10.

The Marine Corps understood the term "meet and confer" to mean "negotiate." Id. When the Marine Corps noted that the Council's final offer insisted on Activity-level (local) negotiations, it decided to implement the Program.

On April 13, 1987, the Marine Corps issued a letter to its components authorizing its Activity Commanders to begin immediate implementation of the Program. The letter noted that negotiations at the national level had resolved all issues except whether local unions would be permitted to negotiate at each Activity over the designation of new smoking areas. The letter reiterated the Marine Corps' position that the Council's proposal for local negotiations directly conflicted with MLA Article 4, Section 2, and was, therefore, outside the duty to bargain. The letter stated that since agreement had been reached on all other issues, the Marine Corps had satisfied its bargaining obligation to the Council on the Program.

The letter also stated that in implementing the Program, the Activities were required to comply with the terms of the Marine Corps' "best and final offer to the Council" regarding designation of smoking areas. Joint Exhibit 12. The Marine Corps' offer, reflected in an attachment to the letter, stated:

SECTION V. DESIGNATION OF SMOKING AREAS

A. Prior to designating smoking areas, the Activity will solicit the views of the local union and, if requested, will consult with a representative designated by the local union concerning the new smoking areas and other appropriate arrangements consistent with this Memorandum of Understanding.

Id.

The Respondents acknowledged that consultation with the local unions regarding designation of smoking areas was not intended to constitute negotiations with them. Judge's Decision at 11.

On April 14, 1987, the Marine Corps' representative called the Council's representative to state that the Council's proposal as to the designation of smoking areas was outside the duty to bargain and that the Marine Corps was going forward with implementation of the Program. After the call, the Council's representative contacted the Federal Mediation and Conciliation Service, which referred him to the Panel because implementation of the Program had already occurred. The Panel ultimately declined jurisdiction in the absence of any resolution of the threshold issues related to the duty to bargain.

While the matter was pending before the Panel, the Marine Corps Activities, including those listed as Respondents in this consolidated case, implemented numerous changes in smoking policies affecting unit employees at the Activities. The parties stipulated that the Respondents implemented the Program and the changes in smoking policies without providing local unions an opportunity to bargain over the substance, impact, and implementation of the changes. Joint Exhibits 1 and 2.

III. Judge's Decision

The Judge concluded that the dispute in this case concerned the "negotiability" of the Council's proposal that the designation of smoking areas be bargained at the Activity level rather than at the national level. Judge's Decision at 17. He found, based on the wording of Article 4, Section 2 of the MLA and its bargaining history, that the Marine Corps "had at no time surrendered its right to negotiate changes in conditions of employment at other than the level of exclusive recognition [the national level]." Id. He also found that the parties' practice in previous negotiations at the national level over changes in conditions of employment affecting more than one Activity was to implement the changes at the Activity level without any further bargaining at the Activity level. Finally, he found that the provision of Section 2 of Article 4, which provided for bargaining normally to occur at the Activity level over changes initiated there, was permissive because either party always retained the right to transfer such local negotiations to the level of recognition, the national level.

Based on these findings, the Judge concluded that Respondent Marine Corps had the right under the MLA to refuse to accede to the Council's request to bargain over its proposal to negotiate the designation of smoking areas at the Activity level. He found that "the proposal was non-negotiable, since it was contrary to the terms of the MLA and below the level of exclusive recognition[.]" Id. at 18. Therefore, he found that the Respondents did not violate the Statute when they implemented the "no smoking" policy while the Council's "non-negotiable proposal" was pending before the Panel. Id.

The Judge also rejected what he viewed to be the position of the General Counsel that the Council's proposal merely concerned the exercise of the Council's right to designate its own bargaining representatives. The Judge concluded, based on the credited testimony of the Respondents' chief negotiator, that the intent of the Council's proposal was to require that negotiations over the designation of smoking areas occur at the Activity level.

Accordingly, having concluded that the Respondents did not violate the Statute when they implemented the new smoking policy at the Activity level, the Judge recommended that the consolidated complaint be dismissed in its entirety.

IV. Positions of the Parties

A. The General Counsel

The General Counsel excepts to the Judge's conclusion that the Council's proposal is nonnegotiable because it is contrary to Article 4, Section 2 of the MLA. The General Counsel argues that the Council's proposal was negotiable because "it merely sought that management discharge its duty to bargain over the designation of smoking areas at the activity level." General Counsel's Brief in Support of Exceptions at 7. In support of this exception, the General Counsel argues that because Respondent Marine Corps never proposed or discussed policy with respect to the actual designation of the smoking areas, this matter was in effect delegated to the Activity level for negotiation. While the General Counsel acknowledges that under Article 4, Section 2 of the MLA, the Marine Corps could have elevated local bargaining to the national level, it argues that the Council's proposal did not preclude the Marine Corps from pursuing that option.

The General Counsel also excepts to the Judge's failure to find violations of section 7116(a)(1) and (5) of the Statute based on the Respondent Activities' changes in conditions of employment concerning the designation of smoking areas without satisfying their bargaining obligations. The General Counsel argues that: "(1) the parties had not reached agreement, (2) the Council took prompt action to invoke the services of the FSIP, (3) the Council had not waived its right to bargain over the smoking policy changes at issue, and (4) implementation of the smoking policy changes at the activity level exceeded the scope of any notice given to the AFGE (the Council), to AFGE 2904 or to AFGE 2317." Id. at 12-13.

Finally, the General Counsel excepts to the Judge's failure to find that the Respondents violated section 7116(a)(1) and (6) by implementing the smoking policy locally at each of the named Respondent Activities while a bargaining impasse existed between the parties and the matter was before the Panel.

B. The Charging Parties

AFGE argues on behalf of the Charging Parties that the Judge incorrectly concluded that the Council's proposal was an attempt to require bargaining below the level of recognition. AFGE argues that the Council's proposal was in direct response to the position of Respondent Marine Corps that the discretion for the designation of smoking areas be retained by the local Activity Commanders.

AFGE also contends that the Judge's conclusion that the Council's proposal was contrary to the MLA amounts to a conclusion that the Council waived its right to bargain at the Activity level. AFGE argues that a waiver must be clear and unmistakable under Authority precedent and that Article 4 "merely sets the procedure for bargaining at the local and national levels," rather than surrendering any bargaining rights. AFGE's Brief in Support of Exceptions at 8.

C. The Respondents

Respondent Marine Corps filed oppositions on behalf of all of the named Respondents to both the General Counsel's and the AFGE's exceptions. In response to the General Counsel's exceptions, the Marine Corps contends that the Judge was correct in finding that the Council's proposal for Activity-level bargaining was nonnegotiable. The Marine Corps argues that under Authority precedent, where the exclusive recognition is at the national level, there is no obligation to bargain at the local level absent agreement by the parties. The Marine Corps argues that in the MLA the parties specifically retained the right to conduct negotiations over any issue at the level of recognition.

The Marine Corps argues further that the Judge did not err in dismissing the section 7116(a)(1) and (5) allegations. The Marine Corps asserts that it satisfied its obligation to bargain at all levels and, therefore, was free to implement the smoking policy. The Marine Corps also contends that the Judge correctly dismissed the section 7116(a)(1) and (6) allegations because the parties were not at impasse. The Marine Corps argues that under Authority precedent there must be a bargaining obligation before an impasse exists, and since there was no obligation to bargain over the matter for which Panel assistance was sought, there was no obligation on its part to maintain the status quo. Finally, the Marine Corps contends that if the Authority should find a violation of the Statute, the General Counsel has not satisfied the requisite elements to justify the status quo ante remedy it seeks in this case.

With respect to the Charging Parties' exceptions, the Marine Corps claims that both parties specifically retained the right to conduct negotiations at the level of recognition under the terms of the MLA. The Marine Corps also argues that the Charging Parties' assertion that it refused to bargain concerning the designation of smoking areas must be rejected because the record clearly supports the conclusion that it was willing to negotiate concerning the designation of smoking areas at the level of recognition.

V. Discussion

We conclude, in agreement with the Judge, that the consolidated complaint should be dismissed. However, we reach our conclusion for different reasons from those stated by the Judge.

This consolidated unfair labor practice complaint raises two issues: (1) whether the Respondents violated section 7116(a)(1) and (6) of the Statute by implementing a new smoking policy at a number of Marine Corps Activities while the parties at the national level were at impasse before the Panel on a national smoking policy; and (2) whether the Respondents violated section 7116(a)(1) and (5) of the Statute by implementing the new policy at the Activities without providing the Charging Parties the opportunity to bargain over the substance, impact, and implementation of the change. The resolution of both of these issues depends on whether the Marine Corps had a duty to bargain over the Council's proposal.

The proposal, entitled "Designation of Smoking Areas," states that "[p]rior to designating smoking areas, the Activity will meet and confer with the designated Union representative[.]" The proposal, as construed by the parties, would require each local Activity to negotiate with local Union representatives over designation of smoking areas. The Authority has held that proposals which authorize the negotiation of agreements below the level of recognition are negotiable. See, for example, American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672, 678-79 (1983) (Proposal 5, requiring the agency to negotiate supplemental agreements covering certain specified subject matters at the level of the agency's district offices, held to be within the agency's duty to bargain).

The Marine Corps contends that it has no duty to bargain with the Council over its proposal because Article 4, Section 2 of the MLA reserves to the Marine Corps the right to conduct negotiations at the national level over the designation of smoking areas. However, the General Counsel and AFGE contend that the proposal is consistent with the MLA. AFGE contends that Article 4, Section 2 "merely sets the procedure for bargaining at the local and national levels." AFGE's Exceptions at 8. The General Counsel contends that Article 4, Section 2 provides that the negotiation of changes initiated at the Activity level will normally be accomplished at the local level, and that the Council's proposal "merely sought to preserve its right to bargain over such designations, and should therefore be found negotiable as a proposal for management to discharge its obligation to bargain over the designation of smoking areas at the activity level." General Counsel's Brief in Support of Exceptions at 10.

We conclude that the essence of the dispute in this case involves differing and arguable interpretations of the parties' MLA. We find that both parties have raised plausible arguments concerning whether the wording of Article 4, Section 2 places an unequivocal limitation on the Marine Corps' duty to bargain over the Council's proposal and whether, in the circumstances in which bargaining occurred in this case, the matter of the designation of smoking areas is a local or national issue under the terms of the MLA. An alleged unfair labor practice which involves differing and arguable interpretations of a collective bargaining agreement is not appropriate for resolution under unfair labor practice procedures. See, for example, 22nd Combat Support G