38:0861(71)NG - - NFFE Local 414 and HHS, Indian Health Service, Oklahoma City, OK - - 1990 FLRAdec NG - - v38 p861

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38 FLRA No. 71

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 414

(Union)

and

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

INDIAN HEALTH SERVICE

OKLAHOMA CITY, OKLAHOMA

(Agency)

0-NG-1767

DECISION AND ORDER ON NEGOTIABILITY ISSUE

December 7, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of one proposal that would require the designation of at least two smoking areas in each Agency facility.

For the reasons discussed below, we find that the proposal is negotiable.

II. Background

In the fall of 1985, in response to the Agency's stated intention to implement a ban on smoking in all its health care facilities, the Union submitted bargaining proposals which, among other things, provided for adequately ventilated designated smoking areas. The Agency declared the proposals nonnegotiable, claiming they interfered with its right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. The Agency subsequently implemented the smoking ban without reaching agreement with the Union, and the Union filed an unfair labor practice charge with the Authority over the alleged unilateral implementation of the ban. The Authority ultimately determined that the Union's proposals did not interfere with the Agency's right to determine the technology, methods and means of performing its work, and found that the Agency committed an unfair labor practice by refusing to bargain over them. Department of Health and Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, Oklahoma City, Oklahoma and Oklahoma Area Indian Health Service Council, National Federation of Federal Employees, 31 FLRA 498 (1988) (IHS), enforced sub nom. Department of Health and Human Services, Indian Health Service, Oklahoma City v. FLRA, 885 F.2d 911 (D.C. Cir. 1989).

In October 1989, immediately following the court's enforcement of the Authority's decision in IHS, the Union submitted a bargaining proposal to the Agency, again calling for the designation of smoking areas. However, during the course of the litigation in IHS, the Department of Health and Human Services (HHS), of which the Agency is a component, issued a department-wide regulation banning smoking in all its facilities. Relying on this regulation, for which the Agency claimed a compelling need under section 7117(a)(2), the Agency again declared the Union's proposal for designated smoking areas to be nonnegotiable. This appeal followed that declaration.

The department-wide regulation that banned smoking in HHS facilities was the subject of the Authority's decision in National Treasury Employees Union Chapter 250 and Department of Health and Human Services, Family Support Administration, Washington, D.C., National Treasury Employees Union Chapter 229 and Department of Health and Human Services Headquarters Office, Washington, D.C., and National Treasury Employees Union Chapter 217 and the Department of Health and Human Services Region VII, Kansas City, Missouri, 33 FLRA 61 (1988) (Family Support Administration), enforced sub nom. Department of Health and Human Services, Family Support Administration, et al. v. FLRA, No. 88-1867 (D.C. Cir. Nov. 30, 1990) (HHS v. FLRA). At issue there, as here, were proposals for designated smoking areas that conflicted with the HHS smoking ban. The agency had declared them nonnegotiable on the grounds that the smoking ban was supported by a compelling need under section 7117(a)(2) of the Statute and that the proposals interfered with the agency's right to determine the methods and means of performing work under section 7106(b)(1). In that case, the Authority found that the agency had not demonstrated a compelling need for the smoking ban and that the proposals did not interfere with the agency's right to determine the methods and means of performing work. Id.

III. Proposal

Designated smoking areas, inside the buildings for employees Minimum of 2 Maximum of 4 per facility.

IV. Positions of the Parties

A. Agency

The Agency contends that its policy requiring the establishment of a smoke-free environment in all Agency-controlled building space is not subject to bargaining because it: (1) is based on an Agency rule or regulation for which a compelling need exists under section 7117(a)(2) of the Statute and section 2424.11(a) of the Authority's Regulations; and (2) involves the methods and means of performing the Agency's work within the meaning of section 7106(b)(1) of the Statute.⁽¹⁾

The Agency maintains that the Union's proposal for the establishment of designated smoking areas within the Agency's buildings conflicts with the smoke-free policy. Further, the Agency contends that