43:1173(96)CA - - 814th Combat Support Group, Beale AFB, CA and AFGE, Local 2025 - - 1992 FLRAdec CA - - v43 p1173

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[ v43 p1173 ]
43:1173(96)CA
The decision of the Authority follows:


43 FLRA No. 96

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

814TH COMBAT SUPPORT GROUP

BEALE AIR FORCE BASE, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2025, AFL-CIO

(Charging Party/Union)

9-CA-00114

9-CA-00213

DECISION AND ORDER

January 28, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

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

The complaint in Case No. 9-CA-00114 alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing a change in working conditions that resulted in the elimination of established smoking areas within certain buildings where unit employees were employed without first giving the Union notice and the opportunity to bargain over the change and/or procedures to be used in implementing the change. The Judge found that the Respondent violated the Statute by failing to give the Union notice of the change and an opportunity to bargain over the impact and implementation of the elimination of the smoking room in Building 2539, but concluded that the Union had waived its right to negotiate over the change itself. The Judge recommended a status quo ante remedy, which reinstated the smoking room in Building 2539.

The complaint in Case No. 9-CA-00213 alleges that the Respondent violated section 7116(a)(1) and (5) of the Statute when on separate occasions it unilaterally designated outdoor smoking areas for unit employees without first giving the Union notice and the opportunity to bargain over the changes. The complaint also alleges that the Respondent violated the Statute by bypassing the Union and soliciting directly from unit employees their proposals for the establishment of outside smoking areas. The Judge concluded that the Respondent violated the Statute in Case No. 9-CA-00213, as alleged. No exceptions were filed to the Judge's findings and conclusions in Case No. 9-CA-00213.

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 the rulings. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions and recommended Order, as modified by this decision.(1)

II. Background and Judge's Decision

The Union is the exclusive representative of a unit of all eligible non-professional civilian employees located throughout Beale Air Force Base, California.

On August 21, 1987, the Wing Commander for the Respondent issued a policy statement entitled "Smoking in the Work Place." Three days earlier, the Union President agreed to a draft letter of the policy statement. The policy statement stated, in pertinent part:

3. My policy on smoking in the work place follows. It is highly discouraged, but if a commander determines that it is in the best interest of his unit, he may designate a smoking area under the following conditions:

a. It will be a place for smokers only.

b. It cannot pollute the work place; either directly on [sic] indirectly through the ventilation system.

c. It will not be a comfortable, relaxing place for smokers to congregate and spend time in.

d. The smoking facility will be cleaned by smokers only.

e. Procedures will be established by each unit and posted on the use of the facility.

f. I will personally inspect and approve/disapprove each smoking area after the above are complied with and prior to its use.

Judge's decision at 3 (emphasis in original).

Prior to the issuance of the August 21, 1987, smoking policy there were only minor limitations on the employees' ability to smoke, such as the prohibition of smoking in hazardous areas. After August, 1987, smoking was not permitted in most of the buildings on Beale Air Force Base.

The current Union President testified that he had personal knowledge of the existence of designated smoking areas after the issuance of the August 1987 policy statement, but could not be sure whether any smoking areas were still in use as of the time of the hearing. Those smoking areas were located in: Building 2539 where the Civil Engineering Squadron was located; Building 2145; the Base Supply Building; and Building 1086, the Base Headquarters Building.

The Union President, a painter, was personally involved in the preparation of the smoking room in Building 2539, which was completed in October or November, 1987. He performed various painting, repair and refinishing work on the room pursuant to a work order from his supervisor. The Deputy Base Civil Engineer acknowledged that he had known of the existence of the smoking room in Building 2539 and stated that he believed that it had been authorized by higher management.

In late November 1989, the smoking room in Building 2539 was closed by management without giving notice to the Union. Upon learning of the closing of the smoking room, the Union President contacted the Respondent's civilian personnel officer about the matter. He was told that because the Commander had not authorized the smoking room and because this was not a new policy, the Respondent was under no obligation to negotiate with the Union over the closure of the room.

The General Counsel argued before the Judge that although the August 1987 policy limited smoking in the work place, it did not ban it. The General Counsel noted also that although the policy set out certain conditions under which a commander could designate a smoking area, and required the Wing Commander to personally inspect and approve or disapprove each smoking area, it did not state that the approval must be in writing. As to the smoking room in Building 2539, the General Counsel contended that that smoking area had been established since October or November 1987, with the Respondent's specific knowledge and approval. The General Counsel further contended that other smoking areas were also present after the issuance of the August 1987 policy. The General Counsel argued that established smoking areas could not be eliminated without first giving the Union notice and the opportunity to bargain over the change.

The Respondent maintained that it was under no obligation to bargain with the Union over the closing of the smoking room in Building 2539 because the Union had waived its rights by agreeing to the August 1987 policy statement. It contended that the policy statement gave the Wing Commander the sole power to approve or disapprove smoking areas and that the smoking area in Building 2539 had not been approved by the Wing Commander.

The Judge found that the smoking room in Building 2539 had been constructed pursuant to orders from management and had been utilized as a smoking room by unit employees for a period of two years with the knowledge and consent of management. The Judge further found that the smoking room in Building 2539 "became a condition of employment which under normal circumstances could not be changed without first notifying the Union and affording it the opportunity to bargain with respect to the substance, impact and the manner of implementation." Judge's decision at 11. In view of the August 21, 1987, policy on "Smoking in the Work Place" that had been agreed to by the Union, however, the Judge found that the continued existence of any smoking area was dependent solely on the final approval of the Wing Commander. Thus, the Judge concluded that the Respondent was under no obligation to bargain with the Union over the substance of the decision to close the smoking room. However, the Judge concluded there was a duty to bargain with the Union as to the impact and manner of implementation of that decision.

Accordingly, the Judge found that, having failed to give the Union prior notice of the decision to close the smoking room and an opportunity to bargain over the impact and manner of implementation of the closure, the Respondent violated section 7116(a)(1) and (5) of the Statute.

III. Positions of the Parties

A. General Counsel's Exceptions

The General Counsel contends that the Union did not waive its right to bargain over the decision by management to eliminate existing smoking areas. The General Counsel argues that the August 21, 1987, policy speaks only to the establishment of designated smoking areas and does not constitute a clear and unequivocal waiver of the Union's right to bargain over the decision by management to eliminate an existing smoking area.

Further, the General Counsel excepts to the Judge's findings that limit the violation and remedy to the closing of the smoking room in Building 2539. The General Counsel contends that the evidence supports the existence in September 1989 of other smoking areas. The General Counsel argues that, although there was no specific testimony regarding the closure of the other designated smoking areas like the testimony concerning the Building 2539 closure, there can be no doubt that the Respondent intended to, and did, eliminate all indoor designated smoking areas. The General Counsel argues that the fact that the Union was not informed by management of its intent to close the smoking areas and, thus, may not have known when the Respondent unilaterally implemented the changes should not be a basis for failing to provide relief. The General Counsel, therefore, contends that the Judge's decision should be modified to provide for the restoration of all designated smoking areas that existed prior to the change, "including but not limited to the designated smoking areas in Building 2539, the Base Supply Administrative Building, and Buildings 1086 and 2145." Exceptions at 9.

B. Respondent's Opposition

The Respondent contends that the Union waived its right to bargain over the substance of the Commander's elimination of a smoking area when it signed off on the August 21, 1987, smoking policy. It argues that the policy statement clearly gave the Commander the power to approve smoking areas and that a decision to eliminate a smoking area is subject to the same discretion provided under that policy because such a decision means that the Wing Commander no longer approves that smoking area.

The Respondent also contends that the Judge was correct in ordering the restoration only of the smoking area in Building 2539 because there was no record evidence that the Respondent ever closed a smoking room other than the smoking room in Building 2539. The Respondent contends that the record shows that the smoking area in Building 2539 was the only indoor smoking room that existed at the Base.

IV. Analysis and Conclusions

A. The Union Did Not Waive Its Right to Bargain over the Respondent's Decision to Eliminate Established Indoor Smoking Areas

The issue presented in this case is whether the Union clearly and unmistakably waived its statutory right to bargain over the substance of the decision by management to eliminate established indoor smoking areas. The General Counsel argues that the August 21, 1987, policy statement concerns only the establishment of designated smoking areas and does not constitute a clear and unequivocal waiver of the Union's right to bargain over a decision by management to eliminate an existing smoking area.

A waiver of a union's statutory right to bargain must be clear and unmistakable. U.S. Department of the Treasury, Customs Service, Washington, D.C. and Customs Service, Northeast Region, Boston, Massachusetts, 38 FLRA 770, 784 (1990). A waiver can be established by express agreement or reliance on bargaining history. Id. Here, there is no question that the August 21, 1987, policy statement set forth the requirements and procedures needed to establish designated indoor areas where employees would be permitted to smoke. Indeed, the Respondent's civilian personnel officer testified that "[t]his is the agreement between [the Union] and management of [the Respondent] that was reached in how smoking areas would be designated." Transcript at 77. Further, the plain wording of the policy statement states that the Wing Commander's inspection and approval/disapproval of each area would occur after certain requirements were complied with "and prior to its use." Judge's decision at 3. However, we conclude that the August 21, 1987, policy, which on its face concerned only the establishment of designated smoking areas, did not clearly address the issue of how the Respondent could close or eliminate smoking areas once they had been established. Therefore, we find that, by agreeing to the policy statement, the Union did not clearly and unmistakably waive its statutory right to bargain over management's decision to eliminate an established smoking area.

Accordingly, we find that the Respondent violated section 7116(a)(1) and (5) when it eliminated an established smoking area without giving the Union prior notice and an opportunity to bargain over its decision.(2)

B. Other Smoking Areas

The General Counsel alleges that other smoking areas were also eliminated by management without providing the Union with prior notice and an opportunity to bargain. Accordingly, the General Counsel contends that the status quo ante remedy should extend to the other smoking areas identified by the Union President as existing after the August 21, 1987, policy statement.

Section 2423.18 of the Authority's Rules and Regulations provides that "[t]he General Counsel shall have . . . the burden of proving the allegations of the complaint by a preponderance of the evidence." We find that the General Counsel has not established by a preponderance of the evidence that other indoor smoking areas were utilized by unit employees with the knowledge and consent of management, or, if such areas did exist as designated smoking areas, that management closed them without providing the Union with prior notice and an opportunity to bargain.

There is ample evidence in the record regarding the establishment of the smoking area in Building 2539 and no dispute that unit employees utilized this specific smoking area with the knowledge and consent of management. In contrast, the General Counsel presented no specific evidence with regard to the other alleged smoking areas except the testimony of the Union President, who testified to having seen, at some unspecified time, designated smoking areas in Building 2145, the Base Supply Building and Building 1086. This allegation was rebutted by the Respondent's civilian personnel officer, who testified to the contrary. The General Counsel proffered no further specific evidence as to the existence of these other smoking areas or any evidence that unit employees utilized such areas with the knowledge and consent of management. Therefore, we conclude that the evidence is insufficient to find that these areas were established and utilized by unit employees with the knowledge and consent of management, or that, if the Respondent did close these areas, it did so in violation of the Statute. Accordingly, we will order a status quo ante remedy only as to the smoking area in Building 2539.

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the 814th Combat Support Group, Beale Air Force Base, California, shall:

1. Cease and desist from:

(a) Unilaterally changing working conditions of unit employees by eliminating established inside smoking areas without first notifying the American Federation of Government Employees, Local 2025, AFL-CIO, the employees' exclusive bargaining representative, and affording such bargaining representative the opportunity to bargain concerning the substance of the change.

(b) Unilaterally changing conditions of employment by establishing designated smoking areas outside various buildings located at Beale Air Force Base without providing the American Federation of Government Employees, Local 2025, AFL-CIO, the employees' exclusive bargaining representative, with prior notice and the opportunity to bargain concerning the substance of the change.

(c) Bypassing the American Federation of Government Employees, Local 2025, AFL-CIO, the employees' exclusive bargaining representative, by dealing directly with unit employees concerning the establishment of outside smoking areas.

(d) 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 action in order to effectuate the purposes and policies of the Statute:

(a) Restore the designated smoking area in Building 2539 that existed prior to November, 1989.

(b) Rescind the memoranda which established designated smoking areas outside the Base Hospital and the Civil Engineering Squadron Building.

(c) Notify the American Federation of Government Employees, Local 2025, AFL-CIO, the employees' exclusive bargaining representative, of any intent to eliminate any existing designated smoking area, including the one in Building 2539, and upon request bargain with such bargaining representative concerning any decision to eliminate any existing designated smoking areas.

(d) Notify and, upon request, bargain with the American Federation of Government Employees, Local 2025, AFL-CIO, the employees' exclusive bargaining representative, with respect to any decision to designate smoking areas outside the Base Hospital and the Civil Engineering Squadron Building.

(e) Post at its facilities at Beale Air Force Base, California, 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 Commanding Officer of Beale Air Force Base, California, and shall be posted and maintained by him 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 insure that such notices are not altered, defaced, or covered by any other material.

(f) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, San Francisco Region, 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 unilaterally change working conditions of unit employees by eliminating established inside smoking areas without first notifying the American Federation of Government Employees, Local 2025, AFL-CIO, our employees' exclusive bargaining representative, and affording such bargaining representative the opportunity to bargain concerning the substance of the change.

WE WILL NOT unilaterally change conditions of employment by establishing designated smoking areas outside various buildings located at Beale Air Force Base without providing the American Federation of Government Employees, Local 2025, AFL-CIO, our employees' exclusive bargaining representative, with prior notice and the opportunity to bargain concerning the substance of the change.

WE WILL NOT bypass the American Federation of Government Employees, Local 2025, AFL-CIO, our employees' exclusive bargaining representative, by dealing directly with unit employees concerning the establishment of outside smoking areas.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute.

WE WILL restore the designated smoking area in Building 2539 that existed prior to November, 1989.

WE WILL rescind the memoranda which established designated smoking areas outside the Base Hospital and the Civil Engineering Squadron Building.

WE WILL notify the American Federation of Government Employees, Local 2025, AFL-CIO, our employees' exclusive bargaining representative, of any intent to eliminate any existing designated smoking area, including the one in Building 2539, and upon request bargain with such bargaining representative concerning any decision to eliminate any existing designated smoking areas.

WE WILL notify and, upon request, bargain with the American Federation of Government Employees, Local 2025, AFL-CIO, our employees' exclusive bargaining representative, with respect to any decision to designate smoking areas outside the Base Hospital and the Civil Engineering Squadron Building.

______________________
(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, San Francisco Region, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103, and whose telephone number is: (415) 744-4000.




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

1. As no exceptions were filed to the Judge's findings, conclusions and recommended Order in Case No. 9-CA-00213, we adopt this aspect of the consolidated complaint without further discussion.

2. An agency's decision as to the designation of smoking areas is negotiable. Accordingly, an agency violates section 7116(a)(1) and (5) of the Statute when it unilaterally changes the designation of smoking areas without bargaining, absent a waiver by the union of its right to bargain. See U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and U.S. Department of Justice, Immigration and Naturalization Service, Portland, Maine District Office, and Portland, Maine and Immigration Service, St. Albans Sub-office, St. Albans, Vermont, 43 FLRA 241 (