42:0003(1)CA - - Marine Corps, Finance Center, Central Design and Programming Activity, Reserve Support Center, Logistics Base, and AFGE Locals 2317 and 2904 - - 1991 FLRAdec CA - - v42 p3

[ v42 p3 ]
42:0003(1)CA
The decision of the Authority follows:


42 FLRA No. 1

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED STATES MARINE CORPS

WASHINGTON, D.C.

and

MARINE CORPS FINANCE CENTER

KANSAS CITY, MISSOURI

and

MARINE CORPS CENTRAL DESIGN AND PROGRAMMING ACTIVITY

KANSAS CITY, MISSOURI

and

MARINE CORPS RESERVE SUPPORT CENTER

OVERLAND PARK, KANSAS

and

MARINE CORPS LOGISTICS BASE

ALBANY, GEORGIA

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 2317

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO, LOCAL 2904

(Charging Parties)

7-CA-70370, 7-CA-70635, 74-CA-70637

(33 FLRA 105 (1988))

DECISION ON RECONSIDERATION

September 3, 1991

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

I. Statement of the Case

The General Counsel requests reconsideration of the Authority's decision in 33 FLRA 105 dismissing the consolidated unfair labor practice complaint. The General Counsel contends that the Authority failed to address the allegation raised in the complaint "that implementation of the designation of smoking and nonsmoking areas at local Marine Corps facilities without bargaining with the appropriate exclusive representatives violated 5 USC 7116(a)(1) and (5)." General Counsel's Motion for Reconsideration (motion) at 2. The General Counsel contends that this failure warrants reconsideration under section 2429.17 of our Regulations. The Respondents oppose the General Counsel's motion.

For the reasons set forth below, we grant the General Counsel's motion. On reconsideration, we find that the Respondents committed unfair labor practices in violation of section 7116(a)(1), (5) and (6) of the Statute by implementing the designation of smoking and nonsmoking areas at local Marine Corps facilities without bargaining with the appropriate exclusive representatives and while impasse proceedings were pending before the Federal Service Impasses Panel (the Panel).

II. Background

The facts in this case are set forth in the Authority's decision and will not be repeated in full here. See 33 FLRA at 106-110. Briefly, the Marine Corps notified the AFGE Council of Marine Corps Locals, Council 240 (the Council) that it intended to implement a Tobacco Prevention Program (the Program) for unit employees. The Program proscribed tobacco use in areas such as conference rooms and classrooms and authorized commanding officers to designate smoking areas for personnel who desire to smoke. The Program did not permit smoking in areas shared by nonsmokers unless, in the commanding officer's judgment, ventilation is adequate to provide a healthy environment.

Upon receiving the Council's request to bargain over the Program, the Marine Corps delayed implementation of the Program. The parties reached agreement on all issues except the procedure for designating the smoking areas at each Activity. The Marine Corps proposed that

[p]rior to designating smoking areas, the Activity will solicit the views of the local union and, if requested, will consult with a representative designated by the local union concerning the new smoking areas and other appropriate arrangements consistent with this Memorandum of Understanding.

33 FLRA at 109. The Marine Corps acknowledged that consultation with the local unions regarding designation of smoking areas was not intended to constitute negotiations with them.

The Council proposed to the Marine Corps that

[p]rior to designating smoking areas, the Activity will meet and confer with the designated Union representatives over the new smoking areas and other appropriate arrangements consistent with the Memorandum of Understanding.

33 FLRA at 108. The Marine Corps understood the term "meet and confer" as used in the Council's proposal to require negotiations over the smoking areas. The Marine Corps refused to agree to the proposal.

The Marine Corps took the position that the Council's proposal for local negotiations conflicted with the first sentence of Article 4, Section 2 of the parties' Master Labor Agreement (MLA). That sentence states that "[a]ny bargaining that might result from changes above the Activity level will be accomplished by the employer and the council [that is, at the national level] unless they mutually agree otherwise." According to the Marine Corps, inasmuch as bargaining over the designation of smoking areas resulted from a national level change (the implementation of the Program), the Council's proposal for local-level bargaining was inconsistent with the MLA and the Marine Corps did not have a duty to bargain over the proposal.

The Council did not modify its proposal, nor did it submit any additional proposals to the Marine Corps. On April 14, 1987, the Marine Corps informed the Council that the Council's proposal was outside the duty to bargain and that the Marine Corps was going forward with implementation of the Program. The Council then submitted the matter to the Panel. The Panel ultimately declined jurisdiction in the absence of any resolution of the threshold issues related to the duty to bargain.

The consolidated unfair labor practice complaint alleged that: (1) the Respondents violated section 7116(a)(1) and (6) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing a new "no smoking" policy at a number of Marine Corps Activities while the parties at the national level were at impasse before the Panel on a national smoking policy; and (2) the Respondents violated section 7116(a)(1) and (5) of the Statute by implementing the new policy at the local Activities without providing the Charging Parties with the opportunity to bargain over the substance, impact, and implementation of the change.

The Authority found that resolution of the issues raised in the complaint depended on whether the Marine Corps had a duty to bargain with the Council over the Council's proposal.

The Authority noted that Article 4, Sections 1 and 2 of the parties' MLA stated:

Article 4: Bargaining During the Term of the Agreement

Section 1 The employer will notify the council of policy changes originating above the activity level that give rise to a bargaining obligation under the statute. Where such changes originate at the activity level, the activity will notify the appropriate local union.

Section 2 Any bargaining that might result from changes initiated above the activity level will be accomplished by the employer and the council unless they mutually agree otherwise. Normally bargaining resulting from changes initiated at the activity level will be accomplished by the local parties, however, either party to this MLA retains the right to transfer such negotiations to the level at which the recognition exists.

33 FLRA at 107.

The Authority concluded that the essence of the parties' dispute involved differing and arguable interpretations of the MLA. The Authority found "that both parties have raised plausible arguments concerning whether the wording of Article 4, Section 2 places an unequivocal limitation on the Marine Corps' duty to bargain over the Council's proposal and whether, in the circumstances in which bargaining occurred in this case, the matter of the designation of smoking areas is a local or national issue under the terms of the MLA." 33 FLRA at 114.

The Authority stated that alleged unfair labor practices involving differing and arguable interpretations of a collective bargaining agreement are not appropriate for resolution under unfair labor practice procedures, but instead should be resolved through the parties' negotiated grievance procedures. Accordingly, the Authority dismissed the complaint in its entirety. Id.

III. The General Counsel's Motion for Reconsideration

The General Counsel contends that the Authority failed to address "the allegation that implementation of the smoking policy changes at the local activity level [was] accomplished without bargaining with the Unions at any level of exclusive recognition. . . . In the absence of any waiver of bargaining rights by the exclusive representative, such failure to bargain must be found violative of Section 7116(a)(1) and (5) of the Statute." Motion for Reconsideration at 7.

The General Counsel asserts that because "the designation of smoking areas for unit employees is substantively negotiable, the Marine Corps was required to discharge its obligation to bargain over the smoking policy changes implemented in these cases somewhere, absent a waiver by the employees' exclusive representative." Motion at 5 (emphasis in original). The General Counsel argues that the Authority's decision "neither finds that management discharged its bargaining obligation nor that any of the unions waived their [s]tatutory bargaining rights." Id. According to the General Counsel, the national level implementation of the Program did not directly result in changes to designated smoking areas at the local level and the Program negotiations did not address the specific changes to designated smoking areas that later were implemented at the local level.

The General Counsel claims that the Authority's rationale that this case involved a matter of contract interpretation "ignores the fact that Respondents did not bargain over the designation of smoking areas at any level of exclusive recognition." Id. (emphasis in original). According to the General Counsel, "[s]ince the [Program] negotiations did not address the specific changes to designated smoking areas which were subsequently implemented at the local level, such changes had to be addressed during bargaining at the local level. The parties stipulated that the Respondents failed to bargain over the changes in smoking policy at the local level." Id. Therefore, the General Counsel asserts that "[i]t is this failure of Respondents to bargain at the local level which was not addressed in the Authority's Marine Corps decision." Id. at 5-6.

The General Counsel argues further that "[s]ince these cases involve the [s]tatutory right to bargain over the designation of smoking areas, examination of the MLA is appropriate only to determine whether the [Council] waived its right to bargain in these cases." Id. at 6. The General Counsel contends that "any such finding of a waiver is precluded by the Authority's finding that these cases involve a matter of contract interpretation." Id. The General Counsel concludes that "[i]n sum, in the absence of a waiver of bargaining rights, Respondents['] implementation of changes in local smoking policies without bargaining at any level must be held to constitute a bargaining violation" under section 7116(a)(1) and (5) of the Statute. Id. at 7.

IV. Respondents' Opposition

The Respondents claim that no "extraordinary circumstances" support the General Counsel's motion. The Respondents argue that the motion should be dismissed because the General Counsel has merely reiterated arguments advanced previously and rejected in this case.

V. Analysis and Conclusions

We find that the decision in 33 FLRA 105 warrants reconsideration under section 2429.17 of our Regulations so that we may clarify the analysis used to resolve the issues in this case. For the reasons stated below, we find that the Council did not waive its right to bargain over the designation of smoking areas and that the Respondents, therefore, had a duty to bargain over the Council's proposal. Accordingly, we find that the Respondents committed the unfair labor practices alleged in the complaint by implementing the smoking policy changes without bargaining over the proposal, and while impasse proceedings were pending before the Panel.

A. The Duty to Bargain

In Internal Revenue Service, Washington, D.C., 39 FLRA 1568 (1991) (IRS), the Authority set forth the approach to be followed in cases involving an alleged statutory violation and allegations that a collective bargaining agreement permits the action that is alleged to constitute an unfair labor practice. We rejected an approach that would dismiss complaints alleging a violation of a statutory right based on a finding that the parties have proffered differing and arguable interpretations of a collective bargaining agreement. We noted that a "differing and arguable" analysis would permit a respondent to violate protected rights based solely on an arguable or plausible interpretation of an agreement without any necessity of proving that its interpretation is correct. We concluded that use of a "differing and arguable" analysis in such cases was inconsistent with the purposes and policies of the Statute and stated that, to the extent that previous Authority decisions applied such an analysis, those decisions would no longer be followed.

In IRS, the Authority reaffirmed that "[t]he established approach . . . to resolve defenses based on a collective bargaining agreement to alleged interference with statutory rights is to determine whether the charging party has clearly and unmistakably waived its statutory right." Id. at 1574. Consistent with IRS, we resolve complaints, such as the one now before us, by determining whether the union clearly and unmistakably waived its statutory rights. See, for example, Marine Corps Logistics Base, Barstow, California, 39 FLRA 1126 (1991) (union did not clearly and unmistakably waive its right to bargain over the impact and implementation of changes in the agency's performance appraisal system); Department of the Army, U.S. Army Finance and Accounting Center, Indianapolis, Indiana, 39 FLRA 1586 (1991) (Authority agreed with judge's conclusion that, pursuant to collective bargaining agreement and subsequent settlement agreement, the union clearly and unmistakably waived its right to determine the number of union representatives for bargaining). Compare Naval Aviation Depot, Norfolk, Virginia, 39 FLRA 1597 (1991) (as matter over which the union sought to bargain was covered by a provision in the parties' contract and as there was no allegation that the agreed-upon procedures were not followed, agency did not violate the Statute by refusing to bargain over union proposals concerning the matter).

B. Application of the Standard to This Case

In its previous decision, the Authority dismissed the complaint solely because "the essence of the dispute . . . involves differing and arguable interpretations" of the parties' agreement. 33 FLRA at 114. As discussed previously, and for the reasons set forth in IRS, 39 FLRA at 1573-74, that analysis is not appropriate in cases such as this one. Accordingly, we must determine whether Article 4 of the parties' agreement constitutes a clear and unmistakable waiver of the Council's right to bargain over a proposal that:

Prior to designating smoking areas, the Activity will meet and confer with the designated Union representatives over the new smoking areas and other appropriate arrangements . . . .

33 FLRA at 124.

As noted in 33 FLRA 105, the Respondents assert that, under Article 4, section 2, "the parties specifically retained the right to conduct negotiations over any issue at the level of recognition." Id. at 112. The General Counsel and the Council argue that the provision constitutes only the procedures by which bargaining will occur, not a waiver of bargaining rights. The General Counsel notes, in this regard, that nothing in the disputed proposal would have prevented the Marine Corps from exercising its right under Article 4, section 2, to transfer negotiations from the local to the national level.

In dismissing the complaint, the Authority concluded as follows:

We find that both parties have raised plausible arguments concerning whether the wording of Article 4, Section 2 places an unequivocal limitation on the Marine Corps' duty to bargain over the Council's proposal and whether, in the circumstances in which bargaining occurred in this case, the matter of the designation of smoking areas is a local or national issue under the terms of the MLA.

Id. at 114.

For the following reasons, we agree with both aspects of the Authority's conclusion.

First, Article 4 is, on its face, procedural. Section 1 provides for notice of changes in conditions of employment at and above the activity level. Section 2 addresses bargaining over changes initiated at those levels. Significantly, although section 2 addresses bargaining by national-level parties on certain matters and local-level parties on others, the section also specifically contemplates bargaining by local parties on national issues and vice versa: the section refers to agreement by national-level parties to bargain locally as well as the transfer of local bargaining to the national level.

As noted previously, the General Counsel concedes that, under the disputed proposal, the Marine Corps could transfer local bargaining to the national level. Moreover, the Marine Corps concedes that "nothing in the [agreement] . . . in any way limits the Council's right to delegate its bargaining authority to local union officials." Id. at 121. It appears, therefore, that the disputed proposal, in practical terms, sought only to begin bargaining over the designation of smoking areas at the local level. As is discussed in more detail below, the Marine Corps proposed designation of smoking areas at the local level and, undoubtedly, the Council preferred all bargaining to be completed at that level. Nevertheless, it is undisputed that, even if it agreed to the Council's proposal, the Marine Corps subsequently could have assumed responsibility for such bargaining itself, with either the Council or, pursuant to the Council's undisputed right to delegate its bargaining authority to local officials, with such local delegees.

The Judge credited testimony by a Marine Corps representative who participated in MLA negotiations that, in reaching agreement to section 2, the Marine Corps "had no problem conceptually with starting negotiations at the local level, but insisted that management be able to elevate such negotiations to the national level." Id. at 119. Accordingly, based on bargaining history and the plain wording of section 2, it is clear that section 2 does not prohibit such bargaining. We do not address here whether, in view of the contractual right to transfer bargaining between local parties to the national level, the Council's proposal that bargaining begin at the local level would have resulted in any meaningful bargaining between the local parties. That issue is not relevant here. However, that the Marine Corps had a contractual right to "transfer" bargaining between local parties to national parties does not compel a conclusion that the Council waived its right to propose such bargaining in the first place. Accordingly, we agree that the parties have raised "plausible arguments concerning whether the wording of Article 4, Section 2 places an unequivocal limitation on the Marine Corps' duty to bargain over the Council's proposal . . . ." Id. at 114.

Second, apart from the issue of whether Article 4, section 2 constitutes a clear and unmistakable waiver in any circumstance, both parties raise plausible arguments concerning whether, as applied in the facts of this case, the provision waived the Union's right to offer the disputed proposal. There was, in this regard, no dispute between the parties that smoking areas would be designated locally. Indeed, the Marine Corps proposed such designation. The Marine Corps had, in fact, "no idea how each local Commander would go about designating smoking areas." Id. at 125. As a result, "each Commander's implementation would be different, and each Activity Commander's smoking policy would apply only to that individual Command." Id. The sole issue between the parties at the time of the Council's proposal was whether local designation would occur with negotiation, as proposed by the Union, or with consultation only, as proposed by the Marine Corps. In these circumstances, we agree with the Authority's previous conclusion that both parties "have raised plausible arguments concerning . . . whether, in the circumstances in which bargaining occurred in this case, the matter of the designation of smoking areas is a local or national issue under the terms of the MLA." Id. at 114.

In sum, we conclude that the parties have offered plausible arguments concerning Article 4, section 2, both as to its overall interpretation and as to its interpretation and application in the factual circumstances of this case. As both parties' interpretations of Article 4, section 2 are plausible, that provision cannot be interpreted as a clear and unmistakable waiver of the Union's right to bargain over the disputed proposal here. See Department of Veterans Affairs, Veterans Administration Medical Center, Boise, Idaho, 40 FLRA 992, 997-98 (1991) (as both parties' interpretations of existing contractual provision were plausible, the provision did not constitute a clear and unmistakable waiver of the union's right to bargain over a disputed proposal). It follows, therefore, that by refusing to bargain over the proposal, the Respondents violated section 7116(a)(1) and (5) of the Statute. See, for example, id. Compare Naval Aviation Depot, Norfolk, Virginia, 39 FLRA 1597 (1991) (as matter over which the union sought to bargain was covered by a provision in the parties' contract and as there was no allegation that the agreed-upon procedures were not followed, the agency did not violate the Statute by refusing to bargain over union proposals concerning the matter).

C. Violation of Section 7116(a)(1) and (6)

Because we have granted the General Counsel's request for reconsideration of the decision in 33 FLRA 105, regarding the alleged violation of section 7116(a)(1) and (5) of the Statute, we find that we must also reconsider the Authority's decision as to the alleged violation of section 7116(a)(1) and (6) of the Statute.

The complaint in this case contained a separate allegation that the Respondents violated section 7116(a)(1) and (6) of the Statute by implementing the Marine Corps' "no smoking" policy at a number of Marine Corps installations while the parties at the national level were at impasse before the Federal Service Impasses Panel (the Panel) on a national smoking policy. The Respondents argued that there was no violation of section 7116(a)(1) and (6), because there must be a bargaining obligation before an impasse exists, and as there was no obligation to bargain, there was no obligation on its part to maintain the status quo. The Panel ultimately declined jurisdiction in the absence of any resolution of the threshold issues related to the duty to bargain.

Once parties reach an impasse in their negotiations and one party timely invokes the services of the Panel, the status quo must be maintained to the maximum extent possible, that is, to the extent consistent with the necessary functioning of the agency, in order to allow the Panel to take whatever action is deemed appropriate. See, for example, Department of Health and Human Services, Health Care Financing Administration, AFL-CIO, 39 FLRA 120, 131-32 (1991), reconsideration denied, 40 FLRA 40 (1991), petition for review filed sub nom. Department of Health and Human Services, Health Care Financing Administration v. FLRA, No. 91-1068 (4th Cir. April 18, 1991). Failure to maintain the status quo, to the extent consistent with the necessary functioning of an agency, while a negotiation dispute is pending before the Panel violates section 7116(a)(1), (5) and (6) of the Statute. See id. at 131. See also, for example, Department of Health and Human Services, Social Security Administration and Social Security Administration, Field Operations, Region II, 35 FLRA 940, 949-51 (1990) (DHHS, SSA Field Operations); U.S. Department of Housing and Urban Development and U.S. Department of Housing and Urban Development, Kansas City Region, Kansas City, Missouri, 23 FLRA 435, 436-38 (1986) (HUD Kansas City); Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985).

The Authority has found no basis on which to conclude that the status quo requirement is, or should be, affected by whatever action the Panel eventually takes regarding the impasse. The purpose of the requirement is to facilitate the Panel's consideration of negotiation impasses and allow the Panel to take whatever action it deems appropriate to resolve disputes. Allowing an agency to implement a change based on its speculation as to what action the Panel will take after implementation would undermine the important role played by the Panel in collective bargaining under the Statute. Therefore, the Authority rejected a respondent's contention that it was not obligated to maintain the status quo because the Panel declined jurisdiction after implementation. DHHS, SSA Field Operations, 35 FLRA at 950. The Authority has also rejected a respondent's arguments that its implementation was required by agency deadlines. Id. at 951. Similarly, while the Authority agreed with an agency that costs are a legitimate factor in deciding what is necessary for the efficient functioning of an agency, the Authority rejected an agency's argument that costs alone required implementation while an impasse was pending before the Panel. See HUD Kansas City, 23 FLRA at 437-38.

The Respondents implemented the designation of smoking and nonsmoking areas at local Marine Corps facilities without bargaining with the appropriate exclusive representative and while an impasse was pending before the Panel. As we found above, the Respondents had an obligation to bargain on the proposal and to maintain the status quo while impasse proceedings were pending before the Panel. Accordingly, we find that the Respondents violated section 7116(a)(1) and (6) of the Statute.

D. Remedy

We find that the Respondents failed to maintain the status quo to the maximum extent possible, while an impasse concerning designation of smoking areas was pending before the Panel. Instead, the Respondents implemented the Tobacco Prevention Program at various facilities and designated smoking areas without bargaining with the exclusive representative of certain of its employees. Accordingly, we determine that postings at the affected locations and a return to the status quo ante are appropriate actions to remedy the unfair labor practices which have been committed.

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 United States Marine Corps, Washington, D.C., on behalf of the Respondents, shall:

1. Cease and desist from:

(a) Refusing to bargain with the American Federation of Government Employees, Council of Marine Corps Locals, the exclusive representative of its employees, on the designation of smoking areas.

(b) Implementing a "Tobacco Prevention Program" or "no smoking" policy without first bargaining with the respective Union locals at the various installations involved in this consolidated case.

(c) Failing and refusing to cooperate in impasse proceedings by implementing a Tobacco Prevention Program and designating smoking areas while an impasse concerning that decision is pending before the Federal Service Impasses Panel.

(d) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

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

(a) Rescind the implementation of a "Tobacco Prevention Program" or "no smoking" policy at the various installations involved in this consolidated case.

(b) Maintain the status quo, to the maximum extent possible, while impasse proceedings are pending before the Federal Service Impasses Panel.

(c) Upon request of the American Federation of Government Employees, Council of Marine Corps Locals, the exclusive representative of its employees, negotiate on the designation of smoking areas at the various installations involved.

(d) Post at the various Marine Corps facilities involved in this consolidated case, 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 Commandant of the Marine Corps and shall be posted in conspicuous places, including all bulletin boards and other places where notice to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(e) 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.

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 refuse to bargain with the American Federation of Government Employees, Council of Marine Corps Locals, the exclusive representative of our employees, on the designation of smoking areas.

WE WILL NOT implement a "Tobacco Prevention Program" or "no smoking" policy without first bargaining with the respective Union locals at the various installations involved.

WE WILL NOT fail and refuse to cooperate in impasse proceedings by implementing a Tobacco Prevention Program and designating smoking areas while an impasse concerning that decision is pending before the Federal Service Impasses Panel.

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

WE WILL rescind the implementation of a "Tobacco Prevention Program" or "no smoking" policy at the various installations involved in this consolidated case.

WE WILL maintain the status quo, to the maximum extent possible, while impasse proceedings are pending before the Federal Service Impasses Panel.

WE WILL, upon request of the American Federation of Government Employees, Council of Marine Corps Locals, the exclusive representative of our employees, negotiate on the designation of smoking areas at the various installations involved.

_________________________
(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 in Washington, D.C., 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) 653-8500.

Separate Opinion of Member Armendariz, concurring in part and dissenting in part

I agree with my colleagues that the General Counsel's request for reconsideration of the Authority's decision in 33 FLRA 105 should be granted to clarify the analysis used to resolve the issues in this case. On reconsideration, I would find, contrary to my colleagues and in agreement with the Administrative Law Judge, that the Respondents did not commit the unfair labor practices alleged.

The level of exclusive recognition in this consolidated bargaining unit is the national level. The parties were engaged in bargaining at the national level regarding implementation of the Marine Corps' Tobacco Prevention Program (the Program). The Council's proposal would require each local Activity to negotiate with local Union representatives over designation of smoking areas at each Activity. This type of "levels" proposal--one that authorizes the negotiation of agreements below the level of exclusive recognition--is negotiable under the Statute. See 33 FLRA at 113. Therefore, the Respondents had a duty to bargain over the proposal unless the Union had clearly and unmistakably waived its right to bargain.

Management does not have a duty to bargain over a negotiable proposal, offered either in mid-term negotiations or in response to a proposed change in conditions of employment, where a union clearly and unmistakably waives its statutory right to bargain over the proposal by agreeing to a contractual limitation on that right. See Naval Aviation Depot, Norfolk, Virginia, 39 FLRA 1597 (1991) (Naval Aviation Depot). The Respondents' defense to their failure to bargain over the proposal in this case is premised on the argument that the particular subject matter of the proposal--the level at which bargaining over the designation of smoking areas will take place--is covered by Article 4, Section 2 of the parties' MLA.

Article 4, Section 2 of the parties' MLA states:

Article 4: Bargaining During the Term of the Agreement

. . . . . . .

Section 2 Any bargaining that might result from changes initiated above the activity level will be accomplished by the employer and the council unless they mutually agree otherwise. Normally bargaining resulting from changes initiated at the activity level will be accomplished by the local parties, however, either party to this MLA retains the right to transfer such negotiations to the level at which the recognition exists.

33 FLRA at 107.

The particular subject matter of the proposal is covered by Article 4, Section 2 of the parties' MLA. I would find that by agreeing to Article 4, Section 2, the Union clearly and unmistakably waived its right to bargain over its proposal and, therefore, the Respondents did not have a duty to bargain over that proposal. The parties' MLA provides that: (1) bargaining that might result from changes initiated at the national level is to occur at the national level, unless both parties agree otherwise; and (2) bargaining resulting from changes initiated at the local level will normally occur at the local level, but either party retains the right to insist on national-level negotiations, the level of exclusive recognition.

Regardless of whether the Union's proposal is viewed as resulting from changes initiated at the national level or the activity level, the parties' MLA reserves to either party the right to insist on national-level negotiations. It is clear that the reverse is not provided for in the parties' MLA; that is, neither party may insist on local-level negotiations. In this case, the Union's proposal would have required local-level negotiations on designation of smoking areas, but management insisted that bargaining occur at the national level. In my view, management's actions were within its rights under the parties' agreement. Inasmuch as the Respondents did not have a duty to bargain over that proposal and no other proposals were pending, the Respondents could properly proceed to implement the Program without committing an unfair labor practice.

This case is not about the negotiability of the designation of smoking areas. It is clear that, if in national-level negotiations the Council had proposed that a given area at a specific Activity be designated as a smoking area, the Marine Corps would have been obligated to bargain about that proposal at the national level. See American Federation of Government Employees, National Veterans Administration Council and U.S. Department of Veterans Affairs, Washington, D.C., 40 FLRA 1052, 1062-69 (1991); Department of Health and Human Services, Social Security Administration, 18 FLRA 73 (1985). However, the Council made no such proposal in this case.

If the parties' agreement had been silent on where negotiations would occur, bargaining would occur at the level of exclusive recognition, that is, at the national level. See Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 39 FLRA 1409, 1418 (1991) (Wright-Patterson IV) (where the level of exclusive recognition was at the national level, an agency did not commit an unfair labor practice when it refused to bargain with a local union at the activity level). In that circumstance, either party could submit a proposal for other procedures for bargaining, such as the proposal regarding bargaining at the local level over the designation of smoking areas, and such a proposal would be appropriate for bargaining.

However, in this case, the parties had already bargained a provision on the level at which negotiations would occur. That provision reserved to either party the right to insist on national-level negotiations. The Respondents had the right, pursuant to the MLA, to refuse to bargain on the Union's proposal that would have required the Respondents to bargain at the local level. Consistent with our decision in Naval Aviation Depot, the Respondents were not obligated to bargain over the Union's proposal requiring bargaining at the local level on the designation of smoking areas.

Finally, with respect to the alleged violation of section 7116(a)(1) and (6) of the Statute, I would dism