40:1052(95)NG - - AFGE, National VA Council and VA, Washington, DC - - 1991 FLRAdec NG - - v40 p1052



[ v40 p1052 ]
40:1052(95)NG
The decision of the Authority follows:


40 FLRA No. 95

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

NATIONAL VETERANS ADMINISTRATION COUNCIL

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

WASHINGTON, D.C.

(Agency)

0-NG-1876

DECISION AND ORDER ON NEGOTIABILITY ISSUES

May 29, 1991

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)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and involves five proposals.(1) The five proposals concern implementation of the Agency's decision to establish a smoke-free environment in the Agency's medical facilities.

For the following reasons, we conclude that the first proposal in dispute, Proposal 14, which permits employees to refuse to follow a physician's orders permitting a patient to smoke in a smoke-free unit, excessively interferes with management's right under section 7106(a)(2)(B) of the Statute to assign work. The portion of the second proposal remaining in dispute, Proposal 15, which provides that only volunteers will be required to accompany patients who wish to smoke to an outside smoking shelter, excessively interferes with management's right to assign work. The sentence remaining in dispute in the third proposal, Proposal 16, which provides that employees who smoke will not be discriminated against, is negotiable. The fourth proposal, Proposal 19, which obligates the Agency to provide smoking shelters that are accessible to and secured for employees only, is negotiable. The last proposal, Proposal 33, which requires the Agency to provide designated smoking areas for certain employees in close proximity to their duty locations, is negotiable.

II. Background

The dispute in this case arose when the Agency sought to establish a smoke-free environment in its medical facilities. After the parties reached impasse on implementation of the proposed smoke-free policy the Union sought assistance from the Federal Service Impasses Panel (the Panel).

In order to resolve the impasse, the Panel ordered the parties to adopt the Agency's proposed smoke-free policy as modified to require the Agency, as relevant in this case, to provide and maintain "reasonably accessible designated smoking areas (DSA) at each of its medical facilities where the smoke-free policy is implemented." Department of Veterans Affairs, Veterans Health Service and Research Administration, Washington, D.C. and National Council, American Federation of Government Employees, AFL-CIO, Case No. 89 FSIP 198 at 2 (1990) (Veterans Health Service and Research Administration). The Panel stated further, that these designated smoking areas "shall be maintained until such time as the [Agency] provides reasonably accessible outside smoking shelter(s) . . . [which] shall accommodate smoking as well as protect the user against the local weather conditions." Id. In addition, the Panel ordered that "[d]isputes with respect to the adequacy of the smoking shelter, and the accessibility of the shelter and interim DSAs, . . . be resolved through the negotiated grievance and arbitration procedures in the master agreement." Id.

Thereafter, the Agency alleged that it had no duty to bargain on 22 of the 33 proposals submitted by the Union concerning implementation of the smoke-free policy and the Union filed an appeal with the Authority as to the 22 proposals remaining in dispute. Subsequently, in its reply brief, the Union withdrew from its appeal the last sentence of Proposal 15, the last two sentences of Proposal 16, and 17 other proposals in their entirety.

The Authority will consider only the five proposals, in whole or in part, remaining in dispute. The sentence withdrawn from Proposal 15, the two sentences withdrawn from Proposal 16, and the 17 other proposals withdrawn will not be addressed further.

III. Proposal 14

On smoke free units, physician's orders to allow smoking for a certain patient need not be honored by Nursing staff. That shall constitute an improper order.

A. Positions of the Parties

1. The Agency

The Agency contends that the right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the specific duties to be performed by particular employees. Consequently, the Agency argues that by prohibiting management from assigning employees to allow patients to smoke under the limited exception to the Agency's smoke-free policy, the proposal interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency also asserts that the decision to permit certain patients to smoke "involves the determination of the [Agency's] mission and the technology, methods and means of performing work." Statement of Position at 18. Finally, the Agency contends that to the extent that the proposal would insulate employees from discipline for refusing to perform a work assignment, it directly interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute.

2. The Union

The Union contends first that the proposal "does not speak to or prohibit [the Agency] from assigning employees to allow patients to smoke under [the Agency's] 'limited exceptions'" to the smoke-free policy. Reply Brief at 2 (emphasis in original). Rather, according to the Union, the intent of the proposal "is to clearly prohibit physicians from circumventing [the Agency's] stated policy on SMOKE FREE UNITS . . . ." Id. Further, the Union claims that employees already have authority to request a determination through their chain of command that an order is illegal, improper, or harmful to a patient and that, "[u]ntil clarified as being consistent with hospital policy or other governing laws or regulations, said improper orders need not be honored." Id. The Union argues that as the right to assign work does not include the right to order employees to engage in acts contrary to policy, law, rule, or regulation, the proposal is consistent with the Agency's regulations concerning the determination of the propriety of a disputed work order.

The Union also argues that the Agency "fails to show or even address" how the proposal interferes with the Agency's right to determine the technology, methods and means of performing work. Id. Similarly, the Union asserts that the Agency fails to show how the proposal interferes with the Agency's right to determine its mission.

Further, the Union disputes the Agency's claim that the proposal insulates employees from discipline. Instead, the Union contends that if higher level Agency management orders an employee to follow an order that is challenged as being improper, "the employee would have to follow the improper order and seek relief from a third party . . . ." Id. at 3.

Finally, although the Union claims generally that all of its proposals "are arrangements to protect both smoking and non-smoking employees in response to a very radical change in conditions of employment[,]" the Union provided no arguments directed specifically to Proposal 14. Id. at 5.

B. Analysis and Conclusions

For the reasons that follow, we find that Proposal 14 excessively interferes with management's right under section 7106(a)(2)(B) of the Statute to assign work.

1. Right to Assign Work

Proposals that preclude management from requiring employees to perform certain duties or restrict management's ability to assign duties directly interfere with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, National Federation of Federal Employees, Local 1655 and Department of Military Affairs, Illinois Air National Guard, 35 FLRA 815, 816-20 (1990) (Illinois Air National Guard) (proposals 1-4 and 6 imposing conditions on, restricting, or prohibiting the assignment of work to employees found to be nonnegotiable).

We find that Proposal 14 directly interferes with management's right under section 7106(a)(2)(B) to assign work. The plain wording of Proposal 14 permits employees to "not honor" particular work assignments. The Union states, in this regard, that its objective is "to clearly prohibit physicians from circumventing [the Agency's] stated policy on SMOKE FREE UNITS . . . ." Reply Brief at 2. However, by providing that employees on smoke-free units "need not" honor physician's orders permitting patients to smoke, Proposal 14 precludes the Agency from assigning employees to allow patients on smoke-free units to smoke. As such, the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

2. Appropriate Arrangement

To determine whether a proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute it is necessary to determine whether the proposal is: (1) intended to be an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army National Guard).

Other than its general claim that all of its "proposals are arrangements to protect both smoking and non-smoking employees" the Union did not provide any specific arguments concerning whether Proposal 14 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Nevertheless, even assuming that Proposal 14 is intended as an arrangement for employees adversely affected by the exercise of management's right to assign work, the proposed arrangement excessively interferes with management's right to assign work. Proposal 14 would ameliorate any adverse effects from the exercise of management's right to assign a specific duty by precluding management, in all instances, from assigning that duty in the first place. A proposal that "precludes an agency from exercising[] a management right inherently cannot constitute an appropriate arrangement." Department of The Treasury, U.S. Customs Service and National Treasury Employees Union, 37 FLRA 309, 314 (1990). We conclude, therefore, that Proposal 14 excessively interferes with management's right to assign work and is nonnegotiable. In view of this finding, it is unnecessary for us to consider the Agency's additional arguments concerning the negotiability of Proposal 14.

IV. Proposal 15

If a patient on a smoke free unit desires to smoke and cannot go to an outside shelter, only volunteer staff shall be required to accompany patient to shelter. There shall be no coercion to do so.

[Only the portion remaining in dispute is set forth above.]

A. Positions of the Parties

1. The Agency

The Agency argues that because Proposal 15 "limits the work assignment of escorting [patients] to . . . outside smoking shelters to volunteers[,]" the proposal violates management's right under section 7106(a)(2)(A) to assign work. Statement of Position at 18-19. In addition, in its allegation of nonnegotiability, the Agency alleged, without further elaboration, that the proposal also violated its right under section 7106(a)(2)(A) of the Statute to assign employees.

2. The Union

The Union argues that Proposal 15 constitutes an appropriate arrangement to safeguard the health of employees. That is, the Union asserts that during negotiations, and during impasse proceedings before the Panel concerning the Agency's proposed implementation of a smoke-free environment in its medical facilities, the Agency produced evidence to indicate "that there is absolutely no safe level of environmental [t]obacco smoke (ETS)." Reply Brief at 3. Thus, according to the Union, Proposal 15 "ensures that management cannot order its employees into imminent danger situations[ ]" resulting from "having to inhale E.T.S. in a patient's smoking shelter." Id.

B. Analysis and Conclusions

1. Right to Assign Work

It is well established that management's right to assign work includes the right to determine the particular qualifications and skills necessary to perform the work and the right to make judgments in determining whether particular employees meet those qualifications. See, for example, American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 30 FLRA 400 (1987) (Proposal 5) (Veterans Administration Medical Center, Leavenworth). Proposals that provide for selecting a particular employee to perform work,from a group of employees who are determined by management to be qualified, are negotiable. See, for example, National Federation of Federal Employees, Local 797 and Department of the Navy, 29 FLRA 333, 336-38 (1987) (Provision 3) (provision requiring agency to request volunteers for specified details found to be negotiable because the provision applied only in situations in which management determined that more than one employee possessed the requisite qualifications and management retained the discretion to determine: (1) the qualifications necessary to perform the duties of the detail; (2) whether the volunteer had the necessary qualifications; and (3) the right to assign whomever it wished to detail if the volunteer procedure did not meet the needs of the agency); American Federation of Government Employees, Council of Social Security District Office Locals and Department of Health and Human Services, Social Security Administration, 11 FLRA 608, 609-11 (1983) (Proposal 2) (proposal providing that employees be allowed to volunteer to perform a particular duty before any of the employees was required to perform the work found to be negotiable as the proposal did not prohibit the agency from making qualifications determinations or require that any volunteer be selected but permitted the agency to select non-volunteers).

On the other hand, proposals that prevent an agency from assigning particular duties to qualified employees directly interfere with the agency's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1016-18 (1988) (Provision 6) (provision restricting the assignment of a specified duty to volunteers only found to directly interfere with the agency's right to assign work); Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 783-84 (1987) (Proposal 41) (Department of Defense Dependents Schools) enforced as to other matters sub nom. Department of Defense Dependent Schools v. FLRA, No. 87-1735 (D.C. Cir. June 22, 1990) (unpub. en banc order), aff'd as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988), (proposal providing that a particular work assignment would be voluntary found to violate management's right to assign work because it would deprive the agency of its right to assign particular employees whom it deemed qualified). See also Veterans Administration Medical Center, Leavenworth, 30 FLRA at 405-06 (portion of Proposal 5 requiring that overtime be assigned first to volunteers and then, if insufficient volunteers existed, to nonvolunteers based on inverse seniority found to be inconsistent with management's right to assign work because there was nothing in the record to establish that management would be able to make qualifications determinations when assigning overtime).

Proposal 15 would require the Agency to assign the task of escorting patients to outside smoking shelters to volunteers. The first sentence provides, in this regard, that "only volunteer staff shall be required to accompany patient to shelter" and the second sentence provides that there will be "no coercion" to perform the assignment. As plainly worded, therefore, the two disputed sentences would make a specified work assignment totally voluntary. If insufficient volunteers existed, the Agency would be precluded from assigning the duty at all. This restriction on the Agency's right to assign a particular duty directly interferes with management's right under section 7106(a)(2)(B) of the Statute to assign work. See Department of Defense Dependents Schools.

2. Appropriate Arrangement

The Union asserts that the two disputed sentences constitute an appropriate arrangement under section 7106(b)(3) of the Statute to "safeguard the health" of employees. Reply Brief at 3. That is, according to the Union, there is no safe level of environmental tobacco smoke. Thus, the Union argues that Proposal 15 "ensures that management cannot order its employees into imminent danger situations[ ]" resulting from having to inhale environmental tobacco smoke in a patient's smoking shelter. As described by the Union, the proposal is intended to offset any adverse effects on employees of being exposed to second hand smoke by making voluntary the assignment of escorting patients to outdoor smoking shelters. Consistent with the Union's statement, we find that the proposal constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute.

Having found that the proposal constitutes an arrangement, it is necessary to determine whether the arrangement is appropriate within the meaning of section 7106(b)(3). To do so, we determine whether the proposal excessively interferes with management's rights: whether the negative impact on management's right to assign work is disproportionate to the benefits conferred by the proposal on employees. See Kansas Army National Guard, at 33. See also National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 841 (1990).

With regard to the "appropriateness" of the arrangement, we note that Proposal 15 does not merely require the Agency to seek volunteers before assigning the disputed task to nonvolunteers. Rather, the proposal makes the assignment completely voluntary. As stated previously, if insufficient qualified volunteers exist, the Agency would be unable to assign the work. In our view, the proposal's negative impact on management's right to assign work is disproportionate to the benefits to employees of having possible exposure to second hand smoke reduced or eliminated. See, for example, Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1416 (1991) petition for review filed sub nom. Federal Employees Metal Trades Council v. FLRA, No. 91-70168 (9th Cir. Mar. 5, 1991) (Provision 2) (provision limiting management's right to detail in certain circumstances found to excessively interfere with management's right to assign employees).

Consequently, we conclude that the first sentence remaining in dispute in Proposal 15 excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The second disputed sentence is inextricably linked to the first sentence. We conclude, therefore, that both sentences are nonnegotiable. In view of our finding that Proposal 15 excessively interferes with the Agency's right to assign work, we do not consider the Agency's additional argument concerning the negotiability of the proposal.

V. Proposal 16

Smoking employees shall not be discriminated against in any way, shape, manner, or form. [If an employee is smoking outside of a DSA in a smoke free facility, said employee shall be instructed as to where the DSA's are. No penalty shall apply (the Administrator cannot collect fines).]

[The bracketed portion has been withdrawn by the Union.]

A. Position of the Parties

1. The Agency

The Agency makes no specific claim that the first sentence's requirement that the Agency not discriminate against employees who smoke is inconsistent with law, rule or regulation. Instead, the Agency's claims relate solely to the now-withdrawn third sentence. In particular, although the Agency asserts that Proposal 16 is inconsistent with its rights to determine its mission and its internal security practices as well as its right to discipline employees, the assertions relate solely to a prohibition, contained in the now-withdrawn third sentence, on the imposition of monetary fines for violations of the Agency's smoke-free policy.

2. The Union

As noted previously, the Union withdrew from consideration by the Authority the second and third sentences of the proposal. As to the first sentence, the Union states that it "is self explanatory and [the Union] would hope that [the Agency] would withdraw their objections to [the first sentence]." Reply Brief at 3. The Union claims that "[t]he obverse of [the first sentence] would be that [the Agency] could discriminate against employees because they smoke . . . ." Id.

Finally, although the Union claims generally that all of its proposals constitute appropriate arrangements, the Union did not provide any specific arguments related to the first sentence of Proposal 15.

B. Analysis and Conclusions

The Agency makes no specific claim that the first sentence's requirement that the Agency not discriminate against employees who smoke is inconsistent with law, rule or regulation. Instead, the Agency's claims relate solely to the now-withdrawn third sentence.

Moreover, there is nothing in the record to establish that the first sentence is intended to require the Agency to take any action, or refrain from taking any action, with respect to smoking employees that would be inconsistent with law, including the Statute, or Government-wide regulation. Rather, the first sentence merely sets forth a general statement that the Agency will not discriminate against employees based on their status as smokers. Therefore, as no basis for finding the sentence nonnegotiable is asserted by the Agency or is apparent to us, we conclude that the first sentence is negotiable.

VI. Proposal 19

The Department shall provide smoking shelters that will be accessible to, and secured for, employees only.

A. Positions of the Parties

1. The Agency

The Agency claims first that Proposal 19 interferes with its rights under section 7106 of the Statute to determine its mission and the technology, methods and means of performing work. In this regard, the Agency states that because it "has determined as a part of its patient care mission that its medical facilities must be free of tobacco smoke, . . . [with] a limited exception to indoor smoking only for certain patients[,] [o]ther patients wishing to smoke must go outside." Statement of Position at 21. Further, according to the Agency, "shelters are a device or way [the Agency] accomplishes its medical treatment mission in a smoke-free environment." Id. Consequently, the Agency claims that "[r]restricting their access to shelters used by employees directly interferes with [the Agency] using the shelters as a device to protect patients from the elements." Id.

The Agency also claims that "making the shelters accessible to patients does not involve employment conditions because it does not arise from the employment relationship." Id.

Finally, the Agency argues that the proposal conflicts with the Panel's order requiring "shelter accessibility and adequate issues to be resolved through the grievance procedure." Id. at 21-22.

2. The Union

As to the Agency's contentions that Proposal 19 interferes with various management's rights, the Union argues first that the Agency's position before the Authority is inconsistent with the Agency's position at the Panel's factfinding hearing. According to the Union, one Agency official testified at the Panel factfinding hearing that it would be improper for employees to subtly encourage smoking by smoking in front of patients. Further, the Union states that another Agency official testified that separate patient and employee smoking shelters had been negotiated at a particular Agency medical facility.

Second, the Union argues that the Agency has not addressed "how there is a direct relationship between this 'methods and means' used by the [Agency] and the mission of the [Agency]." Reply Brief at 3. Further, the Union asserts that the Agency "does not show that this proposal would directly interfere with the mission-related purpose for which the [Agency] uses this 'method of doing work' . . . ." Id.

The Union also contends that requiring "employees to take their smoke breaks with acutely ill patients, some of whom have infectious diseases, . . . is inconsistent with current infection control policies of the [Agency]." Id. at 3-4. Consequently, the Union asserts that the Agency's claims must be dismissed based on the Agency's change of position and on "the potential danger to the employees." Id. at 4. The Union also states that the proposal "most assuredly relates to conditions of employment." Id.

Although the Union claims generally that all of its proposals constitute appropriate arrangements, the Union did not provide any specific arguments related to Proposal 19.

B. Analysis and Conclusions

1. Preliminary Matter

The Agency's assertion that Proposal 19 is inconsistent with the Panel's decision and order raises an issue that we do not entertain in negotiability proceedings. Under part 2424 of the Authority's Rules and Regulations, our review is limited to questions of whether a matter proposed for bargaining is inconsistent with law, rule or regulation. Questions such as those concerning the effect of a Panel decision should be resolved in other appropriate proceedings. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, Chicago, Illinois, 38 FLRA 1605, 1611 (1991).

2. Proposal 19 Concerns Conditions of Employment of Bargaining Unit Employees

The Authority consistently has found that proposals concerning the implementation of an agency's smoking policy involve conditions of employment of bargaining unit employees. See, for example, 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, 506 (1988) (Indian Health Service), enforced sub nom. Department of Health and Human Services, Indian Health Service, Oklahoma City, Oklahoma v. FLRA, 885 F.2d 911 (D.C. Cir. 1989) (Indian Health Service, Oklahoma City v. FLRA). Proposal 19, as plainly worded, applies to bargaining unit employees and concerns implementation of the Agency's proposed smoke-free environment in its medical facilities.

In this case, the Agency does not dispute the proposal's effect on bargaining unit employees. Rather, the Agency claims that it has no duty to bargain over the proposal because "making the shelters accessible to patients does not involve conditions of employment because it does not arise from the employment relationship." Statement of Position at 21. We conclude, however, that the Agency's claim is misplaced.

In American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA 335 (1988) (Office of Personnel Management), enforced sub nom. United States Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C. Cir. 1990), the Authority established the test to be applied in deciding the negotiability of proposals concerning conditions of employment of bargaining unit employees when the proposals also affect individuals or positions outside the bargaining unit. In Office of Personnel Management, the Authority concluded that a proposal concerning the conditions of employment of bargaining unit employees that also affects individuals or positions outside the bargaining unit is negotiable under the Statute if it (1) vitally affects the working conditions of unit employees, and (2) is consistent with applicable law and regulation. The Authority stated that the proposal's effect on nonunit individuals or positions is not a factor in making the negotiability determination.

Inasmuch as the proposal's effect on smoking patients is not a factor in making a negotiability determination, we reject the Agency's claim that it has no duty to bargain over the proposal because the proposal affects smoking patients. Rather, consistent with, among other decisions, Indian Health Service, we conclude that the proposal vitally affects working conditions of bargaining unit employees and is negotiable unless it conflicts with management's rights as alleged by the Agency.

3. Proposal 19 Does Not Directly Interfere with the Agency's Rights to Determine its Mission or the Technology, Methods and Means of Performing Work

We reject the Agency's claims that by precluding patient access to outdoor employee smoking shelters, Proposal 19 directly interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its mission and with its right under section 7106(b)(1) of the Statute to determine the technology, methods and means of performing work.

First, as indicated in the Factfinder's Report which was attached to the Panel's decision in Veterans Health Service and Research Administration, the Agency's mission is to develop, maintain, and operate a national health care delivery system for eligible veterans; carry out a program of medical care research and education and training of health care personnel; and furnish health services to members of the Armed Forces during a war or national emergency. Nothing in Proposal 19 conflicts with or even concerns the Agency's mission. Rather, Proposal 19 merely involves access to employee outdoor smoking shelters. Consequently, we conclude that the Agency has not established that Proposal 19 directly interferes with the Agency's right under section 7106(a)(1) to determine its mission.

Second, we find that the Agency has not established that Proposal 19 directly interferes with its right under section 7106(b)(1) to determine the technology, methods and means of performing work. In this regard, the Authority employs a two-part test to determine whether a proposal directly interferes with management's right to determine the "technology" used in "performing work." In order to sustain such a claim, an agency must show: (1) the technological relationship of the matter addressed by the proposal to accomplishing or furthering the performance of the agency's work; and (2) how the proposal would interfere with the purpose for which the technology was adopted. See, for example, Indian Health Service at 506.

As to the "methods" and "means" of "performing work," the Authority has construed "method" as referring to the way in which an agency performs its work. Id. at 406. "Means" refers to any instrumentality, including an agent, tool, device, measure, plan or policy used by an agency for the accomplishment or furtherance of its work. Id. at 407. The term "performing work" is intended to include those matters that directly and integrally relate to the agency's operations as a whole. Id.

The Authority also employs a two-part test to determine whether a proposal violates management's right to determine the "methods and means of performing work." First, an agency must show a direct relationship between the particular method or means the agency has chosen and the accomplishment of the agency's mission. Second, the agency must show that the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. See, for example, National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 406-09 (1990).

Here, the Agency claims that "outdoor [smoking] shelters are a device or way [the Agency] accomplishes its medical treatment mission in a smoke-free environment." Statement of Position at 21. Assuming, without deciding, that the use of outdoor smoking shelters constitutes the "technology," or the "method" or "means," of "performing work," the Agency has not established how Proposal 19 would directly interfere with the mission-related purpose for which the technology or method or means was adopted. That is, Proposal 19 does not in any manner conflict with the Agency's decision to use outdoor smoking shelters in furtherance of a smoke-free environment in its medical facilities. Nothing in Proposal 19 precludes the use of outdoor smoking shelters or prevents the Agency from either constructing separate outdoor patient smoking shelters or from arranging outdoor smoking shelters into separate employee-only and patient-only sections. Rather, Proposal 19 only concerns restricting access to outdoor employee smoking shelters to employees only.

Consequently, we conclude that Proposal 19 does not directly interfere with the Agency's right to determine the technology, methods and means of performing work within the meaning of section 7106(b)(1) of the Statute.

4. Summary

The Agency's assertion that Proposal 19 is inconsistent with a Panel decision raises an issue that is not appropriate for resolution in a negotiability proceeding. Further, inasmuch as Proposal 19 vitally affects working conditions of bargaining unit employees, the proposal's alleged effect on smoking patients is not a factor in determining its negotiability. Finally, the proposal does not directly interfere with the Agency's right under section 7106(a)(1) of the Statute to determine its mission or with the Agency's right under section 7106(b)(1) of the Statute to determine the technology, methods and means of performing work. Accordingly, Proposal 19 is negotiable.

VII. Proposal 33

Professional/Licensed employees shall not be required to put their License in jeopardy to comply with the "smoke free policy", i.e. if no relief for these employees to leave their unit, DSA's shall be provided for such employees in close proximity to their responsibilities.

A. Positions of the Parties

1. The Agency

The Agency argues that to the extent that this proposal prohibits the Agency from requiring employees to work without a break from their duties it is inconsistent with management's right under section 7106(a)(2)(B) of the Statute to assign work.

The Agency also claims that the portion of the proposal providing that employees not be required to put their licenses in jeopardy "is too vague to permit a negotiability determination." Statement of Position at 25.

Finally, the Agency notes that "licensure is a matter of state law and regulation" and that "[t]hese state legal requirements are independent of the [Agency] employment relationship and thus do not constitute working conditions." Id.

2. The Union

The Union contends that, contrary to the Agency's allegation, the proposal does not require work-free breaks.  The Union states, instead, that "Proposal 33 is an appropriate arrangement for those employees who cannot be relieved of their duties to travel to an outside smoking area." Reply brief at 4.

In support of its position that the proposal constitutes an appropriate arrangement, the Union argues as follows. First, the Union asserts that on many nursing units, especially during the evening and at night, there are only two staff persons assigned to tend to patient needs. According to the Union, if one of the employees is required to go to a remote smoking area for a smoke break, patients would be left in an unsafe condition. The Union also states that in case of an emergency, it would be a dereliction of duty for an employee to leave the unit attended by only one employee. The Union notes, in this regard, that as the Agency "has proposed the remote smoke areas[,] [the Agency] must make arrangements for them to be used or they are a sham and a subterfuge." Id. The Union also claims that as a large number of patients will be permitted to smoke inside, "retaining a designated smoking area so that a health care provider can stay close by the nursing unit on off tours is not such an onerous requirement." Id. On the other hand, the Union argues that "[r]equiring one of two employees to become derelict in their duties to go to a remote smoking area without proper relief would endanger the patients' welfare and put [the employee's] license in jeopardy if an incident arose while the licensed employee is at a remote site." Id. Thus, the Union concludes that the proposal is an appropriate arrangement "to safeguard a licensed employee's license." Id.

Finally, the Union disputes the Agency's claim that state licensing requirements do not constitute working conditions. The Union asserts that under Agency regulations, licensing requirements are "a condition of employment in the [Agency]." Id. at 5 (emphasis in original).

B. Analysis and Conclusions

As indicated with regard to Proposal 19 above, proposals concerning the implementation of an agency's smoking policy involve conditions of employment of bargaining unit employees. Thus, Proposal 33 is negotiable unless it is otherwise inconsistent with the Statute, as alleged by the Agency. Here, the Agency claims that because the proposal prohibits the Agency from requiring employees to work without a break from their duties, it interferes with management's right under section 7106(a)(2)(B) of the Statute to assign work. We reject the Agency's contention. Nothing in Proposal 33, or in the record in this case, indicates that Proposal 33 contemplates a prohibition on requiring employees to work without a break. Rather, Proposal 33 solely concerns the location of indoor designated smoking areas in the Agency's medical facilities. Therefore, Proposal 33 does not directly interfere with the Agency's right under section 7106(a)(2)(B) of the Statute to assign work.

We also reject the Agency's claims that the portion of the proposal providing that "Professional/Licensed employees shall not be required to put their License in jeopardy" is too vague to permit a negotiability determination and or does not concern conditions of employment of bargaining unit employees. In our view, the disputed wording merely constitutes an introductory clause to the proposal's requirement that designated smoking areas be located close to work areas. Moreover, nothing in the proposal requires the Agency to bargain about state or Agency licensing requirements.

Consequently, as the Agency has raised no other arguments concerning the negotiability of Proposal 33, we conclude that Proposal 33 is negotiable.

VIII. Order

The petition for review as to Proposal 14 and the portion of Proposal 15 remaining in dispute is dismissed. The Agency shall upon request, or as otherwise agreed to by the parties, negotiate over the sentence of Proposal 16 remaining in dispute and Proposals 19 and 33.(2)




FOOTNOTES:
(If blank, the decision