39:1461(128)CA - - Air Force, 3800 ABW/AU, Maxwell AFB, AL and AFGE Local 997 - - 1991 FLRAdec CA - - v39 p1461

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[ v39 p1461 ]
39:1461(128)CA
The decision of the Authority follows:


39 FLRA No. 128

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE AIR FORCE

3800 ABW/AU

MAXWELL AIR FORCE BASE, ALABAMA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

LOCAL 997

(Charging Party/Union)

4-CA-80762

DECISION AND ORDER

March 26, 1991

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached Decision of the Administrative Law Judge. The General Counsel filed an opposition to the exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain over a Union-initiated proposal concerning smoking policy raised during negotiations conducted by the parties pursuant to a mid-term reopener provision in their collective bargaining agreement. The Respondent asserted that the Union waived its right to negotiate concerning the smoking policy because the Union had not presented a timely request to bargain on the subject when the Respondent earlier implemented the Air Force's "Anti-Smoking Action Plan."

Relying on Authority precedent, the Judge found that the Union had not clearly or unmistakably waived its right to bargain concerning smoking policy. In this regard, the Judge found that neither the parties' contract nor its bargaining history contains any reference to smoking policy, and that "[t]he Union's proposal, although submitted during midterm bargaining specifically sanctioned by the contract's reopener provision, would have been mandatorily negotiable at any time unless there was a waiver." Judge's decision at 3-4 (emphasis in original). The Judge concluded that although the Union may have chosen not to seek negotiations earlier, in immediate response to the Air Force's plan, "nothing in its conduct evinced an intention to waive its bargaining rights during the contract term, any more than an intention to waive its right to bargain over smoking policy for all time." Id. Accordingly, the Judge found that the Respondent, having been obligated to bargain, violated sections 7116(a)(5) and (1) by refusing to do so.

In its exceptions, the Respondent reiterates its contention that the Union had clearly waived its right to bargain on the Air Force's smoking policy during the life of the contract when it failed to submit a timely bargaining request at the time the Air Force's plan was implemented, citing to the Authority's decision in Internal Revenue Service, 29 FLRA 162 (1987). The Respondent does not contend that the mid-term reopener provision itself limited negotiations.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. We adopt the Judge's findings, conclusions and recommended Order, as modified.

We specifically adopt the Judge's finding that the Union's smoking policy proposal was submitted during mid-term bargaining that was "specifically sanctioned" by the parties' contract reopener provision. In this regard, we find that the contract's broad reopener provision allows either party, "to reopen, to amend and/or to modify [the] Agreement[,]" Joint Exhibit No. 3, and expresses no limit on what matters can be raised. Thus, we find that the mid-term reopener provision allows negotiations on all subjects in the same manner as basic contract negotiations over a new agreement, and would therefore encompass even matters that had been waived by a party under the current agreement. Accordingly, we conclude that the Union's proposal was bargainable pursuant to the broad mid-term reopener pr