39:1306(115)CA - - HHS, Public Health Service and Center for Disease Control, NIOSH, Appalachian Lab. for Occupational Safety and Health and AFGE Local 3430 - - 1991 FLRAdec CA - - v39 p1306



[ v39 p1306 ]
39:1306(115)CA
The decision of the Authority follows:


39 FLRA No. 115

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES

PUBLIC HEALTH SERVICE AND CENTERS FOR DISEASE CONTROL

NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH

APPALACHIAN LABORATORY FOR OCCUPATIONAL SAFETY AND HEALTH

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3430, AFL-CIO

(Charging Party/Union)

3-CA-00190

3-CA-00409

3-CA-00410

3-CA-00411

DECISION AND ORDER

March 22, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This consolidated 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 by the parties, who agree that no material issue of fact exists. The General Counsel and the Respondents filed briefs with the Authority. The Respondents also filed a motion to stay issuance of the Authority's decision in this case.(1)

In Case No. 3-CA-00190, the complaint alleges that Respondents U.S. Department of Health and Human Services (HHS) and Public Health Service, (PHS) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by disapproving a provision negotiated between the Appalachian Laboratory for Occupational Safety and Health, National Institute for Occupational Safety and Health (NIOSH) and the Union concerning the designation of smoking areas. The complaint further alleges that Respondents Centers for Disease Control (CDC) and NIOSH violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over Union proposals that are substantially identical to proposals previously held to be negotiable by the Authority.

In Cases Nos. 3-CA-00409, 3-CA-00410 and 3-CA-00411, the complaints allege that: (1) Respondents HHS and PHS unlawfully interfered with the bargaining relationship between Respondent NIOSH and the Union by directing Respondent CDC to discontinue the designated smoking areas at the NIOSH, Morgantown, West Virginia facility; (2) Respondent CDC violated section 7116(a)(1) and (5) of the Statute by directing Respondent NIOSH to rescind the parties' Memorandum of Understanding (MOU) and discontinue its designated smoking areas; and (3) Respondent NIOSH violated section 7116(a)(1) and (5) of the Statute by repudiating the (MOU) and discontinuing the designated smoking areas at its Morgantown, West Virginia facility.

For the following reasons, we find, in Case No. 3-CA-00190, that Respondent PHS committed the unfair labor practices alleged, but that the complaint against Respondents CDC, NIOSH and HHS should be dismissed. In Cases Nos. 3-CA-00409, 3-CA-00410 and 3-CA-00411, we find that Respondent PHS committed the unfair labor practices alleged, but that the complaint against the Respondents CDC, HHS and NIOSH should be dismissed.

II. Facts

On August 14, 1989, NIOSH and the Union executed a collective bargaining agreement covering the professional and nonprofessional unit employees located at the NIOSH's Morgantown, West Virginia facility. Article 31, Section 1 of the agreement provided, in relevant part, that:

. . . Smoking will not be permitted in work areas or private offices. Smoking will only be permitted in designated areas.

The Union will work with the Employer in selecting designated areas. A sign shall be displayed prominently in designated smoking areas. There will be adequate ventilation and lighting in designated smoking areas to provide an environment which conforms to recognized safety and comfort standards.

Stipulation at 5.

On September 6, 1989, Respondent PHS disapproved several provisions of the agreement, including Article 31, Section 1, during agency head review pursuant to section 7114(c) of the Statute. Jt. Exh. 7. Respondent PHS advised Respondents CDC and NIOSH and the Union that Article 31, Section 1 was disapproved because it was inconsistent with HHS General Administrative Manual Chapter 1-60 and HHS Federal Personnel Manual Instruction 792-3, which ban smoking in all HHS owned and leased building space.

On December 11, 1989, the parties met to renegotiate the provisions of the agreement which had been disapproved by Respondent PHS. With respect to the smoking policy provision, the Union "proposed to maintain the current designated smoking areas." Jt. Exh. 8. Respondents CDC and NIOSH "rejected the Union[']s proposal on the grounds of non-negotiability." Id. See also Stipulation at 5. The Union asserted that the Respondents' refusal to bargain on the issue of designated smoking areas constituted an unfair labor practice.

Subsequently, Respondent NIOSH and the Union signed an MOU agreeing that "until the issue of smoking [was] finalized, the two designated smoking areas inside Respondent NIOSH's Morgantown, West Virginia facility . . . would continue." Stipulation at 5-6. Respondent NIOSH and the Union also reached agreement with respect to the other disapproved provisions of their August 14, 1989 collective bargaining agreement and forwarded the new agreement to Respondent PHS.

By memorandum dated January 9, 1990, Respondent PHS advised Respondent CDC that it had reviewed the renegotiated collective bargaining agreement and "found the agreement as amended to be consistent with pertinent laws and regulations[.]" Jt. Exh. 9. Respondent PHS noted that "the parties [had] deleted from the agreement the article that was formerly Article 31, 'Smoking Policy.'" Id. Respondent PHS further advised that it was approving the collective bargaining agreement as of the date of the memorandum. A copy of the January 9, 1990 memorandum was sent to Respondent NIOSH and the Union.

By memorandum dated February 27, 1990, Respondent PHS advised Respondent CDC that the MOU between Respondent NIOSH and the Union, providing for the continuation of the designated smoking areas in the Appalachian Laboratory, was contrary to the HHS smoke-free environment policy. Respondent PHS directed Respondent CDC to "work with the managers of the Appalachian Laboratory to discontinue the designated smoking areas at Morgantown so that the Laboratory is in full compliance with the smoke-free environment policy." Jt. Exh. 10. By memorandum of March 7, 1989, Respondent CDC advised the Respondent NIOSH that:

PHS has asked us to rescind the smoking memorandum of understanding agreeing to the "status quo" until the HHS "no smoking case" is litigated. (See attachment)

Would you please notify the union and place notices in the designated smoking areas to notify employees who smoke that the areas cannot be used as designated smoking areas after March 31, 1990.

Would you also ask the employees who smoke to use the dock areas for smoking and to avoid smoking in the front of the building.

Jt. Exh. 11.

On April 1, 1990, Respondent NIOSH discontinued the designated smoking areas at its Morgantown, West Virginia facility.

III. Position of the Parties

A. General Counsel

The General Counsel contends that Respondents CDC and NIOSH violated section 7116(a)(1) and (5) of the Statute by refusing to bargain with the Union over designated smoking areas. The General Counsel asserts that in Family Support Administration, the Authority "specifically held that there existed no compelling need for the Agency's regulation banning smoking" and "that proposals concerning the implementation of an agency's smoking policy involve fully negotiable conditions of employment of bargaining unit employees[.]" General Counsel's Brief at 4-5. The General Counsel argues that once a proposal has been determined to be negotiable by the Authority, "it is a violation of 7116(a)(1) and (5) . . . for an agency to refuse to negotiate . . . on that proposal, or on a proposal without material differences, in similar circumstances." Id. at 4.

Next, the General Counsel contends that Respondents HHS and PHS violated section 7116(a)(1) and (5) of the Statute because they "precluded their subordinate elements, Respondents CDC and NIOSH, from fulfilling the obligation to bargain." Id. at 5. The General Counsel argues that Respondents HHS and PHS prevented Respondents CDC and NIOSH from fulfilling their bargaining obligations when Respondent PHS "disapproved of those terms of the newly executed collective bargaining agreement which pertained to designated smoking areas" and relied exclusively on the regulations of HHS as the basis for its disapproval. Id.

The General Counsel also argues that Respondents HHS, PHS, and CDC violated section 7116(a)(1) and (5) of the Statute by directing Respondent NIOSH to repudiate the MOU and discontinue the designated smoking areas at the Morgantown, West Virginia facility. The General Counsel also argues that Respondent NIOSH violated section 7116(a)(1) and (5) of the Statute when it repudiated the MOU and discontinued the designated smoking areas.

To remedy the violations, the General Counsel requests that the Respondents be required to reinstate the designated smoking areas and post an appropriate notice to employees.

B. Respondents

The Respondents assert that their actions did not violate the Statute. The Respondents argue that a "compelling need" exists for the Department's rule or policy establishing a smoke-free environment, which bars negotiations on the subject. Respondent's Brief at 3. The Respondents assert, in this regard, that the decision of the U.S. Court of Appeals for the D.C. Circuit on review of Family Support Administration "will be determinative of the issue here." Id. at 2.(2)

IV. Analysis and Conclusions

A. Case No. 3-CA-00190

1. Respondent PHS

We find that Respondent PHS violated section 7116(a)(1) and (5) of the Statute when it disapproved the contractual provision concerning designated smoking areas.

An agency violates section 7116(a)(1) and (5) of the Statute when it refuses to bargain over a proposal that is the same or substantially identical to a proposal the Authority has previously determined to be negotiable. See, for example, U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, Northeast Region, Boston, Massachusetts, 38 FLRA 770, 788 (1990); U.S. Department of Defense Dependents Schools, Dependents School Mediterranean Region, Madrid, Spain, 38 FLRA 755 (1990); Department of the Air Force, U.S. Air Force Academy, 6 FLRA 548 (1981), aff'd sub nom. Department of the Air Force, United States Air Force Academy v. FLRA, 717 F.2d 1314 (10th Cir. 1983). The Authority has stated, in this regard, that an agency "acts at its peril" in refusing to bargain over such proposals. U.S. Department of the Army, Fort Stewart Schools, Fort Stewart, Georgia, 37 FLRA 409, 420 (1990). Additionally, an agency acts at its peril when it disapproves a negotiated provision that is not materially different from one previously found negotiable by the Authority. For example, Department of the Treasury and Internal Revenue Service, 22 FLRA 821, 827-30 (1986).

The Authority has consistently found that proposals concerning the implementation of an agency's smoking policy involve negotiable conditions of employment of bargaining unit employees. The Authority has held that proposals providing for designated smoking areas and requiring previous smoking policies to remain in effect pending agreement on the new policy are negotiable. See, for example, U.S. Department of the Air Force, Space Systems Division, Los Angeles Air Force Base, California, 38 FLRA 1485 (1991); U.S Department of the Air Force, 832d Combat Support Group, Luke Air Force Base, Arizona, 36 FLRA 289 (1990); Family Support Administration; Department of Health and Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma Area, Indian Health Service, Oklahoma City, Oklahoma, 31 FLRA 498 (1988), enforced sub nom. Department of Health and Human Services, Indian Health Service v. FLRA, 885 F.2d 911 (D.C. Cir. 1989).

The parties stipulated that Respondent PHS disapproved the contractual provision concerning designated smoking areas on the ground that it was inconsistent with the HHS regulation on smoking. The same regulation was addressed by the Authority in Family Support Administration, where the Authority found that the Agency had not demonstrated that a compelling need under section 7117(a)(2) of the Statute existed for its rule. As noted, the Authority's decision in Family Support Administration was enforced by the U.S. Court of Appeals for the D.C. Circuit. HHS v. FLRA.

The disputed provision is not materially different from proposals previously found by the Authority to be negotiable. Moreover, the Respondents' sole objection to the provision was rejected by the Authority and the court in HHS v. FLRA.(3) Accordingly, we find that Respondent PHS violated section 7116(a)(1) and (5) of the Statute by disapproving the contractual provision.(4)

2. Respondents CDC and NIOSH

We conclude that the record fails to establish that Respondents CDC and NIOSH refused to bargain over the Union's proposal concerning the designation of smoking areas.

The record reflects that when Respondent PHS disapproved the contractual provision regarding smoking areas, it advised Respondents CDC and NIOSH that the provisions conflicted with the HHS smoke-free environment policy. The parties stipulated that Respondents CDC and NIOSH declared the Union's proposal concerning designated smoking areas nonnegotiable.

Although the parties stipulated that Respondent CDC declared the Union's proposals to be nonnegotiable, there is no evidence of such declaration in the record before us. The parties' MOU states, in this regard, that the "employer has rejected the Union[']s proposal on the grounds of non-negotiability." Jt. Exh. 8. The MOU is signed by representatives of Respondent NIOSH and the Union only. In addition, although the Union holds exclusive recognition with Respondent NIOSH, there is no evidence in the record of a bargaining relationship between the Union and Respondent CDC. Based on the record before us, therefore, there is no evidence that Respondent CDC interfered with the bargaining relationship between NIOSH and the Union or otherwise violated the Statute by declaring the Union's proposal nonnegotiable. Accordingly, we will dismiss this allegation.

The record is clear that Respondent NIOSH declared the Union's proposal to be nonnegotiable. See Jt. Exh. 8. It is also clear, however, that Respondent NIOSH and the Union did in fact bargain over the subject of designated smoking areas. In fact, Respondent NIOSH and the Union executed an MOU in which they agreed that employees would be permitted to continue to use the existing designated smoking areas until final decisions were reached in the pending cases concerning the negotiability of the HHS smoke-free environment policy. Moreover, Respondent NIOSH's assertion of nonnegotiability resulted from, and was consistent with the disapproval of the parties' agreement by, Respondent PHS.

In this situation, we find that it would not effectuate the purposes and policies of the Statute to find that Respondent NIOSH violated the Statute by declaring the Union's proposal nonnegotiable. Despite Respondent NIOSH's assertion that the Union's proposals were nonnegotiable, the Respondent bargained over the proposals. It appears, in this regard, that notwithstanding the actions taken and directed by higher-level management, Respondent NIOSH actively sought to fulfill its bargaining obligations under the Statute. We will not, therefore, find that the Respondent NIOSH's assertion of nonnegotiability violated the Statute.

Based on the foregoing, we conclude that the record does not establish that Respondents CDC and NIOSH violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over the Union's proposals concerning designated smoking areas. Accordingly, we will dismiss the complaint as to Respondents CDC and NIOSH.

3. Respondent HHS

We find that the record does not establish that the Respondent HHS violated section 7116(a)(1) and (5), as alleged in the complaint.

The General Counsel's allegation against the Respondent HHS is based on the Respondent PHS's letter disapproving the collective bargaining provisions. The General Counsel argues that the Respondent HHS violated the Statute because the Respondent PHS's letter referred to the HHS regulations of August 25, 1987, concerning smoking in the workplace.

We reject the General Counsel's contention. More than a mere reference to the existence of policy by an agency is necessary to establish that an agency has unlawfully interfered with the collective bargaining relationship between its subordinate activities and the union. For example, Department of the Navy and Washington Navy Yard, 28 FLRA 1022, 1024-25 (1987) (Washington Navy Yard), reversed on other grounds mem. sub nom. Department of the Navy, Washington Navy Yard v. FLRA, Nos. 87-1581, 87-1665 (D.C. Cir. Aug. 9, 1990). The stipulated record contains no evidence that the Respondent HHS required or instructed the Respondent PHS to disapprove the negotiated provision, between the Respondent NIOSH and the Union, or that Respondent HHS interfered in any other way with the collective bargaining relationship between Respondent NIOSH and the Union. In fact, the HHS regulation underlying the dispute in this case provides that prior to "implementation" of the regulation, a subordinate activity "shall meet its obligation under [the Statute] . . . where there is an exclusive representative for the employees." Jt. Exh. 5 at 3. Accordingly, we will dismiss the complaint as to Respondent HHS.

B. Cases Nos. 3-CA-00409, 3-CA-00410 and 3-CA-00411

We find that: (1) Respondent PHS violated section 7116(a)(1) and (5) of the Statute by directing Respondent CDC to discontinue the designated smoking areas at Respondent NIOSH's Morgantown, West Virginia facility; (2) Respondents CDC and NIOSH did not violate section 7116(a)(1) and (5) of the Statute because their actions were merely ministerial in nature; and (3) the record does not establish that Respondent HHS committed the unfair labor practice alleged in the complaint.

When management at a higher level in an agency directs or requires management at a subordinate level to act in a manner that is inconsistent with the subordinate level's bargaining obligations under the Statute, the higher level entity violates section 7116(a)(1) and (5) of the Statute. See United States Department of Agriculture, 30 FLRA 22, 25-26 (1987); United States Department of Agriculture, Washington, D.C. and United States Department of Agriculture, Farmers Home Administration, Little Rock, Arkansas, 24 FLRA 682, 686-87 (1986) (Farmers Home); Headquarters, Department of the Army, Washington, D.C, and U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, 22 FLRA 647 (1986) (Fort Leonard Wood). Where a subordinate level activity merely carries out higher level instructions and acts ministerially and without discretion in the matter, the Authority will not find that the subordinate level activity violated the Statute by its actions. See, for example, Department of the Interior, Bureau of Reclamation, Washington, D.C. and Department of Interior, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, Nevada, 33 FLRA 671, 680 (1988); Farmers Home 24 FLRA at 686-87; United States Department of the Treasury, Internal Revenue Service and Internal Revenue Service, Austin District, and Internal Revenue Service Houston District, 23 FLRA 774, 779-80 (1986).

In these consolidated cases, the record establishes that Respondent NIOSH and the Union executed a MOU in which Respondent NIOSH agreed that it would continue the existing designated smoking areas until the smoking issue was resolved. The parties stipulated, in this regard, that Respondent PHS "directed Respondent CDC to discontinue the designated smoking areas at Respondent NIOSH's Morgantown, West Virginia facility." Stipulation at 6 The parties also stipulated that Respondent CDC "directed Respondent NIOSH to discontinue its designated smoking areas at the Morgantown, West Virginia facility." Id.

The record supports the parties' stipulation that Respondent PHS directed the discontinuation of the designated smoking areas. The Respondent PHS's letter to the Respondent CDC noted, in this regard, the parties' MOU and that "the continuation of the designated smoking areas in the Appalachian Laboratory is consistent with the wishes of [the Union] and with the provisions of current case law[.]" Jt. Exh. 10. The letter concluded:

We believe that no organization in PHS should continue the practice of having designated smoking areas contrary to the HHS smoke-free environment policy while there still has been no final decision by the courts in the pending HHS smoking cases. Accordingly, we ask that you work with the managers of the Appalachian Laboratory to discontinue the designated smoking areas at Morgantown so that the Laboratory is in full compliance with the smoke-free environment policy. Please inform us when this has been done and of any union action taken in response to the discontinuation.

Id. at 2. It is clear from this letter that Respondent PHS was aware of, and directed Respondent CDC to take actions to cause Respondent NIOSH to repudiate, the parties' MOU. In fact, the letter specifically requested notification as to any Union action taken in response to the discontinuation. We conclude, in these circumstances, that Respondent PHS violated section 7116(a)(1) and (5) of the Statute by directing its subordinate organization, Respondent CDC, to instruct its subordinate activity, Respondent NIOSH, to undertake actions which breached its bargaining obligations under the Statute. By its actions, Respondent PHS prevented its subordinate activity from complying with its statutory obligations and, thereby, unlawfully interfered in the bargaining relationship between Respondent NIOSH and the Union. Compare Department of Defense, Department of the Navy, Washington, D.C., 20 FLRA 121, 123 (1985) (Department of the Navy) (higher-level management did not violate the Statute by issuing directive preventing subordinate activities from fulfilling their statutory obligations because the directive "did not unconditionally direct . . . subordinate levels to make the change, but rather gave them the direction to change the policy 'to the maximum extent possible within current labor agreement . . . constraints.'").

Respondent CDC took actions to effectuate the Respondent PHS's direction. Respondent CDC directed the Respondent NIOSH to "notify the union and place notices in the designated smoking areas to notify employees who smoke that the areas cannot be used as designated smoking areas after March 31, 1990." Jt. Exh. 11. The Respondent CDC noted that Respondent PHS had asked for rescission of the MOU. Respondent NIOSH complied with the directions from higher-level management and, on April 1, 1990, discontinued the designated smoking areas.

We conclude that Respondent CDC did not violate section 7116(a)(1) and (5) of the Statute by rescinding the lawful and binding MOU between its subordinate activity, Respondent NIOSH, and the Union. We conclude also that Respondent NIOSH did not violate the Statute by discontinuing the designated smoking areas. In our view, these Respondents were deprived of their discretion to comply with the MOU when Respondent PHS directed the repudiation of the MOU and the discontinuation of the designated smoking areas. As such, Respondents CDC and NIOSH were merely implementing the directives of higher level agency management and their actions were ministerial in nature. We conclude, in these circumstances, that the purposes and policies of the Statute would not be effectuated by finding separate violations by Respondents CDC and NIOSH.

Finally, for reasons discussed more fully in connection with Case No. 3-CA-00190, we conclude that the record does not support a conclusion that Respondent HHS interfered with the collective bargaining relationship between its subordinate level activities and the Union. See Washington Navy Yard, 28 FLRA at 1024-25; Department of the Navy, 20 FLRA at 122-23. Accordingly, we will dismiss the complaint against Respondent HHS.

V. Summary

In Case No. 3-CA-00190, we conclude that: (1) Respondent PHS violated section 7116 (a)(1) and (5) of the Statute by disapproving a contractual provision which was not materially different from proposals previously found by the Authority to be negotiable; (2) Respondents HHS, CDC, and NIOSH did not violate section 7116(a)(1) and (5) of the Statute.

In Cases Nos. 3-CA-00409, 3-CA-00410 and 3-CA-00411, we conclude that: (1) Respondent PHS violated section 7116(a)(1) and (5) of the Statute by unlawfully interfering with the subordinate activity's collective bargaining relationship with the Union and, as a result, by preventing the subordinate activity from complying with its obligations under the Statute; (2) Respondents CDC and NIOSH did not violate the Statute as alleged in the complaint because their actions were ministerial in nature; and (3) the record does not support a conclusion that Respondent HHS committed the unfair labor practice alleged in the complaint.

VI. Remedy

As a remedy, the General Counsel requests that the Respondents be required to reinstate the designated smoking areas and post an appropriate Notice to employees. Here, the record establishes that the designated smoking areas at the NIOSH, Morgantown, West Virginia facility were eliminated pursuant to the unlawful actions of Respondent PHS. In these circumstances, we find that the remedy requested by the General Counsel is appropriate and will effectuate the purposes and policies of the Statute.

VII. 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 Public Health Service, shall:

1. Cease and desist from:

(a) Failing and refusing to approve the provisions in Article 31, Section 1, of the August 14, 1989, negotiated agreement between the Appalachian Laboratory for Occupational Safety and Health, National Institute of Occupational Safety and Health (NIOSH) and the American Federation of Government Employees, Local 3430, AFL-CIO (Union), which pertain to designated smoking areas and are substantially identical to proposals previously found to be negotiable by the Federal Labor Relations Authority.

(b) Directing NIOSH to declare nonnegotiable Union proposals that are substantially identical to proposals previously determined to be negotiable by the Authority.

(c) Rescinding and/or directing the Centers for Disease Control (CDC) and NIOSH to repudiate lawful agreements with the Union, including the December 11, 1989, Memorandum of Understanding on designated smoking areas.

(d) Directing CDC and NIOSH to discontinue the designated smoking areas at the Morgantown, West Virginia facility or in any like or related manner, unlawfully interfering with the collective bargaining relationship between NIOSH and the Union.

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

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

(a) Withdraw and rescind its disapproval of Article 31, Section 1, Smoking Policy of the August 14, 1989, negotiated agreement between NIOSH and the Union and notify those two parties of such action in writing.

(b) Reinstate and reestablish the designated smoking areas at the Morgantown, West Virginia facility that existed prior to April 1, 1989.

(c) Post at its facilities where unit employees are located, 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 Assistant Secretary, Public Health Service, and they shall be posted and maintained for 60 consecutive days thereafter in conspicuous places, including all bulletin boards and other 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, Washington, D.C. Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

The allegations in the consolidated complaints against the Respondents HHS, CDC, and NIOSH are dismissed.

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 fail and refuse to approve the provisions in Article 31, Section 1, of the August 14, 1989, negotiated agreement between the Appalachian Laboratory for Occupational Safety and Health, National Institute of Occupational Safety and Health (NIOSH) and the American Federation of Government Employees, Local 3430, AFL-CIO (Union), which pertain to designated smoking areas and are substantially identical to proposals previously found to be negotiable by the Federal Labor Relations Authority.

WE WILL NOT direct the Centers for Disease Control (CDC) and NIOSH to declare nonnegotiable Union proposals that are substantially identical to proposals previously determined to be negotiable by the Authority.

WE WILL NOT rescind or direct CDC and NIOSH to repudiate lawful agreements with the Union, including the December 11, 1989, MOU on designated smoking areas.

WE WILL NOT direct CDC and NIOSH to close the designated smoking areas at the Morgantown, West Virginia facility or in any like or related manner unlawfully interfere with the collective bargaining relationship between NIOSH and the Union.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL withdraw and rescind our disapproval of Article 31, Section 1, Smoking Policy of the August 14, 1989, negotiated agreement between NIOSH and the Union and notify those two parties of such action in writing.

WE WILL reinstate and reestablish the designated smoking areas at the Morgantown, West Virginia facility which existed prior to April 1, 1989.

_____________________________
(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.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W. 7th Floor P.O. Box 33758 Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-5091.




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

1. The Respondents requested that the Authority stay the issuance of a decision until the U.S. Court of Appeals for the District of Columbia Circuit rev