37:0972(81)CA - - HHS, Public Health Service, Indian Health Service, Indian Hospital, Rapid City, SD and NFFE Local 179 - - 1990 FLRAdec CA - - v37 p972



[ v37 p972 ]
37:0972(81)CA
The decision of the Authority follows:


37 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

PUBLIC HEALTH SERVICE

INDIAN HEALTH SERVICE, INDIAN HOSPITAL

RAPID CITY, SOUTH DAKOTA

(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 179

(Charging Party)

7-CA-70812(2)

DECISION AND ORDER

October 12, 1990

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts entered into by the Respondent, the Union, and the General Counsel. The issue is whether the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing changes in its smoking policy inside the Indian Hospital, Rapid City, South Dakota (the Hospital) without bargaining with the Union.

For the following reasons, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute.

II. Facts

With certain exclusions, the Union is the exclusive representative of all nonprofessional and nonsupervisory employees of the Hospital. From December 1985 until June 1, 1987, bargaining unit employees were permitted, consistent with the then-existing smoking policy, to smoke in the designated smoking area in the Hospital's public waiting room on the first floor by the switchboard. On February 17, 1987, the Indian Health Service (IHS) Director advised all IHS employees, including all bargaining unit employees at the Hospital, that "[i]t is the policy of the [IHS] to achieve a work place environment free from the harmful effects of tobacco smoke for all IHS employees and beneficiaries. As expeditiously as possible, the [IHS] will continue to eliminate tobacco smoke in all clinical and administrative facilities[.]" Stipulation, Exhibit 4. On March 24, 1987, the Union advised the Hospital's Service Unit Director that there was a "no smoking policy" in effect that allowed designated smoking areas for the patients and staff, and that if management wished "to negotiate on this policy again," the Union would do so under certain conditions. Stipulation, Exhibit 5.

On April 13, 1987, the Service Unit Director informed the Union that the Director of the IHS had ordered all facilities to become totally smoke-free as soon as possible and that the Hospital intended to implement that order on June 1, 1987. The letter asked the Union for "any suggestions or comments that [it] could provide concerning the implementation of this national policy." Stipulation, Exhibit 6. During a meeting in April or May, the Union president and the Service Unit Director met to discuss the plan to eliminate all smoking inside the Hospital. The Director told the Union president that the decision to eliminate all smoking inside the Hospital was not negotiable, but that the Respondent would negotiate over the impact and implementation of the decision.

On April 29, 1987, the Service Unit Director notified all Hospital employees that the Hospital would become smoke-free as of June 1, 1987. As scheduled, smoking was prohibited within the Hospital on June 1, 1987, including smoking by bargaining unit employees in the public waiting room on the first floor by the switchboard. The parties stipulate that: (1) the Respondent implemented the smoking ban without bargaining with the Union over the decision to prohibit all smoking; and (2) the Union had the opportunity to bargain over the impact and implementation of the total prohibition of smoking, but did not pursue that opportunity. Stipulation, para. 18.

III. Positions of the Parties

A. General Counsel

The General Counsel contends that the Respondent's implementation of its decision to prohibit smoking at the Hospital without bargaining over the substance of that decision violated section 7116(a)(1) and (5) of the Statute because "changes in smoking policy are substantively negotiable conditions of employment." General Counsel's Brief at 6. The General Counsel contends that the Authority's decisions in Department of Health and Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, Oklahoma City, Oklahoma, 31 FLRA 498 (1988) (Indian Health Service), enf'd, 885 F.2d 911 (D.C. Cir. 1989) (IHS, Oklahoma City)(2) and National Association of Government Employees, Local R14-32 and Department of the Army, Fort Leonard Wood, Missouri, 26 FLRA 593 (1987) (Fort Leonard Wood) "require that Respondent's conduct herein . . . be held violative of the Statute." Brief at 7. The General Counsel requests a status quo ante remedy.

B. Respondent

The Respondent contends that the complaint should be dismissed because the Respondent has no obligation to bargain with the Union over the decision to implement a smoke-free policy at the Hospital. According to the Respondent, its decision to achieve a smoke-free environment in the Hospital is a reasonable means of furthering its statutory mission to maintain and improve the health of the American Indian people, and, therefore, qualifies as a "method or means" of performing the Respondent's work under section 7106(b)(1) of the Statute. The Respondent states that "[t]he overall health mission of a hospital--particularly a hospital devoted to the special obligations of the federal government to promote the health of the American Indian, see 25 U.S.C. º 1601--unmistakably includes all reasonable steps of removing exposure to hazardous materials, such as environmental tobacco smoke." Respondent's Brief at 5.

The Respondent acknowledges that the Authority's decision in Indian Health Service is "directly relevant" to this case. Id. at 4. The Respondent asserts, however, that this case provides the Authority an opportunity to "visit afresh" its approach to resolving disputes involving management's right to determine the methods and means of performing work. Id. at 1.

The Respondent contends that in determining whether a proposal is inconsistent with management's right to determine the methods and means of performing work, the Authority should apply the same analysis that it uses with respect to other management rights. The Respondent asserts that, with respect to management's rights other than "methods and means," the Authority does not review the merits of a management decision but, rather, defers to management's discretion in exercising its rights. The Respondent maintains that the same deferential treatment should be accorded in this case. The Respondent asserts that the test in the instant case should be "whether there is a 'linkage' between the IHS's establishment of a smoke-free environment and its expressed concerns involving the furtherance of the health of the American Indian people." Id. at 11. The Respondent contends that there is such a linkage in this case.

IV. Analysis and Conclusions

It is well established that, with exceptions not relevant here, an agency is required to provide a union with notice of, and an opportunity to bargain over, changes in conditions of employment of unit employees. See, for example, Department of the Air Force, Scott Air Force Base, Illinois, 5 FLRA 9 (1981). There is no dispute in this case that the Respondent's smoking policy concerns conditions of employment of unit employees . See IHS, Oklahoma City, 885 F.2d at 913 ("Smoking policy proposals plainly involve conditions of employment[.]").

There also is no dispute in this case that the Respondent effected a change in its then-existing smoking policy. Prior to the change, unit employees were permitted to smoke in the designated smoking area in the public waiting room on the first floor of the hospital. Stipulation, para. 10. After the change, smoking was prohibited throughout the hospital. Id. para. 16.

Finally, there is no dispute in this case that (1) the Respondent notified the Union of its intent to change the policy and provided the Union with an opportunity to bargain, and (2) the Union sought bargaining over the change. In this regard, the parties' stipulation, at paragraph 18, reflects that:

The total prohibition of smoking . . . was implemented by Respondent without engaging in bargaining with the Union over the decision to prohibit smoking. Prior to implementation, Respondent provided the Union an opportunity to bargain solely over the impact and implementation of the total prohibition of smoking[.] The Union at no time waived its right to bargain over the substance of the smoking policy. However, the Union did not pursue bargaining over the impact and implementation of the total prohibition of smoking.

The issue in this case, therefore, is whether, in view of the Union's insistence that bargaining take place over the substance of the changed policy and its consequent failure to pursue bargaining over the impact and implementation of the change, the Respondent was privileged to implement the change without any bargaining. For the following reasons, we find that the Respondent was not so privileged.

The Agency asserts that institution of a smoking policy constitutes a method or means of performing work, within the meaning of section 7106(b)(1) of the Statute. We agree. A "method," under section 7106(b)(1), refers to the way in which an agency performs its work. National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 406 (1990) (NTEU). "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. Id. at 407. A decision to adopt a particular method or means constitutes an exercise of an agency's right under section 7106(B)(1) if the agency establishes that there is a direct and integral relationship between the method or means chosen and the accomplishment of the agency's mission. Id. at 406.

We conclude that the Respondent's decision to implement a smoking policy is a "method" of performing work because it is a decision as to the way in which the Respondent will provide health care. Similarly, the smoking policy is a "means" of performing the Respondent's work because it is a measure or policy adopted by the Respondent to accomplish its health-care mission. In addition, the Respondent's mission is the effective and efficient operation of a health care facility established to provide health care to American Indians. The objective of the Respondent's smoking policy is to improve the quality of the health care provided by the Hospital by removing a substance which is inimical to the health of patients, visitors and employees. As such, there is a direct and integral relationship between the adoption of the smoking policy and the accomplishment of the Hospital's mission. See IHS, Oklahoma City, 885 F.2d at 914 (court concluded that, in view of the mission of the Indian Health Service, "it could hardly be contended that the no-smoking rule is not directly and integrally related to the agency's purpose.") Compare Family Support Administration, 33 FLRA at 69 (Authority ruled that the agency's regulation calling for a smoke-free environment did not concern the methods or means of performing the agency's mission to conduct research and inform the public on the adverse effects of smoking); Fort Leonard Wood, 26 FLRA 593, 598 (Authority held that a total ban on smoking was not essential for the achievement of the activity's objectives).

We conclude, based on the foregoing, that the Respondent's decision to institute a smoking policy constituted an exercise of its right to determine the methods and means of performing work. The Respondent's right to institute a smoking policy does not necessarily encompass a right unilaterally to determine all details of the policy, however. In this regard, as the Respondent concedes, the Authority's decision in Indian Health Service is directly relevant to determining the parameters of the Respondent's right.

Indian Health Service, like this case, involved the agency's implementation of a no-smoking policy in its hospital and other health care facilities. The Authority found, as relevant here, that union proposals requiring the agency to designate "adequately ventilated" designated smoking areas were negotiable. 31 FLRA at 501, 507. In particular, the Authority concluded that the agency had not shown that "without a total ban on smoking in its facilities it will be unable to achieve its objective of promoting American Indian Health." Id. at 507. Accordingly, the Authority concluded that there was nothing in the record to show that the proposals would interfere with the Agency's objective in instituting its smoking policy.

In IHS, Oklahoma City, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the Authority's decision in Indian Health Service. The court found that under the Authority's standard, "bargaining is required if the alternative proposed by the labor union does not improperly interfere with [the] purpose" sought to be accomplished by the agency. 885 F.2d at 916. The court stated that determinations as to whether proposals interfered with an agency's purpose required careful analysis:

[T]he distinction, with respect to the Statute, between those union proposals which do and those which do not interfere with the purpose for which an agency's technology, methods and means were adopted, is not always simple or self-evident but may be complex and involve both expertise and judgment. The decision may depend, inter alia, upon the degree of departure from agency policy implicit in a particular union proposal the type of agency involved, and the agency's specific needs and requirements. Thus, . . . a uniform requirement adopted by the National Guard or a dress code prescribed by the Bureau of Prisons may be regarded as integral to the mission of these agencies in every respect, while a dress code applicable to the [Immigration and Naturalization Service], a fire department, or a Veterans Administration hospital may be subject to collective bargaining with respect to details. Because of the need for expertise and judgment, the drawing of lines between negotiable and non[]negotiable union proposals is ultimately within the jurisdiction of the FLRA[.]

Id. at 917.

The court concluded that "proposals which do not interfere with the agency's purpose are not beyond the scope of collective bargaining even if they differ in details from the methods and means adopted by [the] agency." Id. at 916-17 (footnoted omitted). The court also concluded that the union's proposals, requiring the designation of isolated, well-ventilated rooms where employees could smoke without having smoke released into other parts of the building, were consistent with the agency's right to impose a smoke-free policy as well as consistent with the purposes underlying the smoking restrictions: (1) removing smokers from areas where other employees and patients could be harmed by exposure to smoke, and (2) setting a good example for Indian patients and their visitors. Accordingly, the court enforced the Authority's bargaining order in Indian Health Service.

In this case, as in IHS, Oklahoma City, the Respondent instituted a smoking policy. The "same policy of a smoke-free environment" is involved in both cases. Respondent's Exceptions at 3. Further, the purposes underlying the Respondent's smoking policy in this case are the same as the agency's purposes in Indian Health Service. As stated by the Respondent:

Tobacco is a major killer of Indian people. We all need to cooperate in order to demonstrate our commitment to health promotion. As Health Professionals, we need to set a strong example that will help to improve the health of all people.

Stipulation Exhibit 6. It is clear, therefore, that like Indian Health Service, the purposes underlying the Respondent's policy were to safeguard the health of employees and patients and to provide a good example for patients and their visitors.

We reaffirm the analytical framework used by the Authority in Indian Health Service and, consistent with IHS, Oklahoma City, we conclude that the Respondent's right, under to section 7106(b)(1) of the Statute, to institute a smoking policy does not encompass the right unilaterally to determine the details of the policy.(3) Instead, the Respondent is obligated to bargain over Union proposals which do not interfere with the purposes of the policy, even if the proposals "differ in details from the method and means adopted by [the Respondent]." 885 F.2d at 917.

As the Respondent is obligated under the Statute to bargain over Union proposals which, although they might differ in details from the Respondent's preferred policy, do not interfere with the purposes of the Respondent's policy, the Respondent is not privileged to implement changes in its policy without bargaining with the Union. That is, as the Respondent is not entitled unilaterally to determine the details of the policy, the Respondent likewise is not entitled unilaterally to change the policy.

In this case, the Agency did not refuse to bargain over Union proposals. Instead, the Respondent informed the Union, before the changes in the smoking policy were implemented, that its "decision to eliminate all smoking . . . was not negotiable." Stipulation, para. 16. As a result, the Union did not offer proposals. We note, in this regard, that only 3 weeks prior to the Respondent's notification to the Union that it intended to implement its changes to the smoking policy, the Union offered to negotiate with the Respondent over changes in the policy under the conditions that certain porches on the ground, second, and third floors of the Hospital be enclosed and insulated against the elements. Stipulation, Exhibit 5.

We find no basis on which to conclude that, in these circumstances, the Union was required to offer impact and implementation proposals, identified as such, in order to preserve its right to bargain over the changes in the smoking policy. The Respondent's right to institute a smoking policy did not encompass the right unilaterally to determine the details of the policy. Rather, the "substance" of the details, or changes, in the smoking policy were negotiable unless the Union's proposals directly interfered with the purposes of the policy. Put simply, it is clear under IHS, Oklahoma City, that the Respondent's right to institute a smoke-free environmental policy does not encompass the right to institute a total ban on smoking. As it is necessary to determine whether particular proposals directly interfere with the purposes of the smoking policy as opposed to the decision to institute a smoking policy, it is not meaningful in this situation to distinguish between "substance" and "impact and implementation" bargaining.(4)

We are unwilling to interpret the Statute in a manner which would require a union, in this circumstance, to label its proposals in a particular way to preserve its right to bargain.(5) To do so, in our view, would encourage the parties to engage in semantic disputes instead of collective bargaining and, as such, would not be consistent with the policies and purposes of the Statute.

Consequently, we conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally implementing changes in its smoking policy. In so doing, we emphasize that the Respondent violated the Statute by preempting bargaining. The Respondent's refusal to entertain any proposals over the "substance" of its changes in the smoking policy foreclosed bargaining over negotiable aspects of the changes and was, therefore, inconsistent with its statutory obligation to bargain over changes in conditions of employment. We take no position, however, on what proposals would be negotiable or whether the proposals offered by the Union before notice of the change were negotiable.

V. Remedy

Consistent with the General Counsel's request, and the Authority's decision in Indian Health Service, we find that a status quo ante remedy is appropriate to remedy the Respondent's violation of the Statute. See Indian Health Service, 31 FLRA at 509. We will, therefore, direct the Respondent to rescind the changes in the smoking policy effected on June 1, 1987, and to provide the Union with notice and an opportunity to bargain, to the extent consistent with the Statute, before effecting future changes in the policy.

VI. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Health and Human Services, Public Health Service, Indian Health Service, Indian Hospital, Rapid City, South Dakota shall:

1. Cease and desist from:

(a) Unilaterally instituting changes in its smoking policy without bargaining, to the extent consistent with the Statute, with the National Federation of Federal Employees, Local 179, the exclusive representative of a unit of its employees, about the changes.

(b) In any like or related manner, interfering with, restraining or coercing its employees in the exercise of the rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Rescind the changes in the smoking policy effected on June 1, 1987, and reinstitute the policy in effect before the changes.

(b) Notify the Union of any intention to change the policy and, on request, bargain with the Union, to the extent consistent with Statute, on the change.

(c) Post at its facilities copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director of the Indian Health Service, and shall be posted and maintained for 60 consecutive days in conspicuous places, including all bulletin boards and places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT;

WE WILL NOT unilaterally institute changes in our smoking policy without bargaining, to the extent consistent with the Statute, with the National Federation of Federal Employees, Local 179, the exclusive representative of a unit of our employees, about the changes.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights assured them by the Statute.

WE WILL rescind the changes in the smoking policy effected on June 1, 1987, and reinstitute the policy in effect before the changes.

WE WILL notify the Union of any intention to change the policy and, on request, bargain with the Union, to the extent consistent with the Statute, on the change.

_____________________________
(Activity)

DATED:__________ By:_________________________

(Signature) (Title)

This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

Dissenting Opinion of Member Armendariz

I respectfully dissent from my colleagues' conclusion that the Respondent violated section 7116(a)(1) and (5) of the Statute. The parties stipulated that: (1) the Respondent implemented its decision to prohibit smoking "without engaging in bargaining with the Union over the decision to prohibit smoking"; (2) "[p]rior to implementation, Respondent provided the Union an opportunity to bargain solely over the impact and implementation of the total prohibition of smoking"; and (3) "the Union did not pursue bargaining over the impact and implementation of the total prohibition of smoking." Stipulation, paragraph 18.

The General Counsel contends:

The Union's failure to pursue bargaining over the impact and implementation of the total smoking prohibition does not relieve Respondent of unfair labor practice liability in this case. It is Respondent's failure and refusal to bargain over the substance of its decision to prohibit smoking entirely within the Indian Hospital which comprises the bargaining violation in this case.

General Counsel's Post-Stipulation Brief at 7 (emphasis in original). In this regard, the General Counsel asserts that the Authority "should reject any argument which may be raised by the Respondent in this case that its decision to prohibit smoking at the Indian Hospital is negotiable only at the election of the agency under [s]ection 7106(b)(1) of the Statute as involving the 'technology, methods, and means' of performing work." Id. at 8.

I agree with my colleagues that the Respondent's decision to implement a smoke-free policy at the Hospital is directly and integrally related to the mission of the Hospital and that the decision constitutes an exercise of the Respondent's right to determine the methods and means of performing its work under section 7106(b)(1) of the Statute. Inasmuch as we have rejected the General Counsel's argument that the decision to prohibit smoking at the Hospital does not come within the terms of section 7106(b)(1) of the Statute, the General Counsel's theory of the case (that the Respondent's failure to bargain over the substance of its decision constitutes an unfair labor practice) should, therefore, be rejected.

I would find that the Union's request that the Hospital bargain over any changes to the smoking policy--that is, over the substance of the decision to implement a smoke-free policy--directly interferes with the mission-related purpose for which the Hospital chose that policy: the improvement of the quality of the health care provided by the Hospital, consistent with the Indian Health Care Improvement Act, 25 U.S.C. º 1601 et seq. The Union's request that the Respondent negotiate over the decision to impose the smoke-free policy in the Hospital would require the Respondent to bargain over the very decision that, under section 7106(b)(1), it had the right to impose without electing to bargain. There is no doubt that the Union's request to negotiate over the decision to ban smoking in the Hospital directly interferes with the Respondent's right to implement its smoke-free policy.

Consequently, I would not find that the Respondent preempted the right of the Union to bargain over details of the Respondent's policy of a smoke-free environment. To the contrary, the Union had the opportunity through impact and implementation bargaining to bargain over such matters, but expressly chose not to pursue that opportunity.

In my opinion, there is a significant difference between IHS, Oklahoma City and the present case. In IHS, Oklahoma City, as here, the union requested that the agency negotiate on the substance of its smoke-free policy and the agency declined on the basis that the substance of that policy was nonnegotiable. However, unlike in this case where the Union did not pursue its opportunity to bargain on the impact and implementation of the Hospital's decision, the union in IHS, Oklahoma City offered four specific impact and implementation proposals which concerned possible accommodations for smokers while leaving unchanged the substance of the policy for a smoke-free environment. The agency in IHS, Oklahoma City refused to bargain over those impact and implementation proposals. See 31 FLRA at 500-01.

The Authority found in IHS, Oklahoma City that the union's impact and implementation proposals were negotiable because they did not interfere with the objectives of the agency in adopting a smoke-free policy. Therefore, the Authority concluded that the agency's refusal to bargain over those proposals violated section 7116(a)(1) and (5). The U.S. Court of Appeals for the District of Columbia Circuit, in affirming the Authority's decision, found that the union's proposals, such as designating isolated, well-ventilated rooms in which employees could smoke without having smoke released into other parts of the building, were consistent with the agency's right to impose a smoke-free policy.

In contrast, in the case before us, the Union sought to bargain over any changes to the smoking policy, but did not submit any impact and implementation proposals. The Union in this case might have submitted impact and implementation proposals, as did the union in IHS, Oklahoma City, that would not have interfered with the purpose behind the smoke-free environment policy. However, the Union did not do so. Rather, the Union declined the Respondent's offer to bargain on the impact and implementation of the smoke-free policy.

I emphasize my agreement with the proposition that agencies' smoking policies affect unit employees' conditions of employment and collective bargaining proposals concerning those policies are, as a general matter, negotiable. See, for example, U.S. Department of the Air Force, 832D Combat Support Group, Luke Air Force Base, Arizona, 36 FLRA 289 (1990) and Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 35 FLRA 153 (1990). I conclude only that, in the particular circumstances of this case as stipulated by the parties: (1) the Respondent's decision to implement a smoke-free policy in the Hospital is directly related to the performance of its work and, as such, constitutes an exercise of its right under section 7106(b)(1) of the Statute to determine the methods and means of performing its work; and (2) the Respondent had the right under section 7106(b)(1) to elect not to bargain over the substance of its decision to adopt a smoke-free policy at the Hospital and, accordingly, did not commit an unfair labor practice by refusing to bargain over that decision. In light of the parties' stipulation, the Respondent did not violate its obligation to bargain over the impact and implementation of the decision to change the smoking policy because, as acknowledged by the General Counsel, the Union did not submit any impact and implementation proposals in response to the Respondent's offer to bargain as to those matters.




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

1. Dissenting opinion by Member Armendariz.

2. The court's decision in IHS, Oklahoma City was issued after the parties filed their briefs in this case.

3. However, to the extent that the Authority's decision in Indian Health Service may be read as holding that the agency's smoking policy did not constitute an exercise of its right to determine the methods and means of performing work, we do not adhere to that holding.

4. We note the parties' stipulation regarding the Union's failure to pursue bargaining over the impact and implementation of the change in the smoking policy. Stipulation, para. 18. Consistent with our discussion above, we urge the parties in similar cases to refrain from stipulating to such matters, as they are more appropriately characterized as legal conclusions rather than facts.

5. We acknowledge, in this regard, that in Indian Health Service, the union's proposals were offered following the union's agreement to negotiate over the "impact and implementation" of the agency's policy. Indian Health Service, 31 FLRA at 500. That fact played no part in either the Authority's decision or the court's decision in IHS,