44:1098(90)CA - - 56th Combat Support Group, MacDill AFB, FL and NFFE Local 153 - - 1992 FLRAdec CA - - v44 p1098

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44:1098(90)CA
The decision of the Authority follows:


44 FLRA No. 90

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

56TH COMBAT SUPPORT GROUP (TAC)

MACDILL AIR FORCE BASE, FLORIDA

(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 153

(Charging Party/Union)

4-CA-00465

DECISION AND ORDER

May 1, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

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

The complaint alleged, and the Judge found, that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing a smoking ban in Building 242 of the Respondent's facilities without providing the Union with notice and an opportunity to negotiate over either the substance or the impact and implementation of the change in working conditions. The Judge recommended that the Authority issue an Order requiring the Respondent to, among other things, rescind the smoking ban and bargain with the Union upon request concerning any intended changes in conditions of employment, including smoking bans.

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, the exceptions, the opposition, and the entire record, we agree with the Judge that the Respondent violated section 7116(a)(1) and (5) of the Statute. We adopt the Judge's findings and conclusions in that regard. For the reasons discussed below, we will modify the Judge's recommended Order.

II. Background

The facts of this case, more fully set forth in the Judge's decision, are summarized below.

The Union is the exclusive representative of a bargaining unit of the Respondent's employees at its Florida facilities, including employees who work in Building 242. Prior to February 1990, the Respondent provided a break room as a designated smoking area in Building 242. In February 1990, the Respondent's Division Chief informed a unit employee that he could not smoke in Building 242. The record does not reveal when the smoking ban in Building 242 became effective.

On February 23, 1990, the Union President learned about the ban on smoking for the first time. The Union President immediately contacted the Respondent's Labor Relations Chief to inform her that the Respondent had implemented a unilateral change without providing the Union with notice and an opportunity to bargain. By letter to the Respondent dated February 26, 1990, the Union requested to negotiate on the substance and impact and implementation of the change in the smoking policy. The Union also requested that the Respondent provide documentation as to the reasons for the change and submitted bargaining proposals. The Union indicated that due to a heavy workload, it would be unable to schedule negotiations before mid-April.

The Respondent "never answered the Union's proposals or provided the requested documentation." Judge's Decision at 3. On March 12, 1990, the Respondent sent the Union President a copy of a letter, dated February 28, 1990, from its Safety Division Chief which "purport[ed] to announce his intention to implement a total smoking ban in Building 242." Id. The letter was received by the Union after the Union and affected employees had been told about the smoking ban and after the Union had complained to the Respondent about the matter. According to the Respondent's March 12 letter, the smoking ban applied only to non-unit employees.

Also, in the March 12 letter, the Respondent proposed that the parties bargain on March 21, although the Union had informed it that the Union's negotiators would not be available until at least mid-April. The Union's reply suggested that bargaining begin on April 11, 1990. By letter to the Union dated March 20, 1990, the Respondent agreed to the April 11 date, but also announced the immediate implementation of a total smoking ban in Building 242, effective March 20, 1990.

Negotiations concerning the smoking ban did not occur on April 11 because the Respondent's representative refused to negotiate when other representatives from the Respondent's labor relations office did not attend the scheduled meeting. On April 19, 1990, the Union filed an unfair labor practice charge alleging that the Respondent had unilaterally implemented the smoking ban.

After the Union filed the charge, the parties met to negotiate and reached impasse on the smoking ban issue. The Union filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider the impasse. The Union proposed that the Panel require the Agency to "designate an area outside of Building 242 for smoking" that is "within 25 feet of [Building 242]" and provides "protection from the elements" and provide "[c]ounseling and rehabilitation" to employees who desire to quit smoking[.]" Respondent's Exhibit No. 3 at 2-3. The Union did not request a return to the status quo; that is, the Union did not request that the Respondent be required reestablish the smoking room in Building 242. On November 27, 1990, while the matter was pending before the Panel, the parties entered into a "tentative agreement providing for the construction of two outside walls to give smokers protection from the elements." Id. at 4. That agreement "constituted the basis for a failed settlement attempt" in the instant unfair labor practice case. Id.

On December 20, 1990, the Panel issued a decision ordering the parties to adopt the Respondent's proposal, which prohibited smoking in Building 242 and designated as the smoking area for Building 242 a covered picnic area approximately 75 yards from the building. Department of the Air Force, MacDill Air Force Base, MacDill AFB, Florida and Local 153, National Federation of Federal Employees, 90 FSIP 217 (1990).

III. Administrative Law Judge's Decision

According to the Judge, "[t]here is no dispute . . . that the substance of the [Respondent's] smoking policy is negotiable." Judge's Decision at 5 (footnote omitted). The Judge stated that the Respondent raised only two issues for consideration: "(l) whether there was a valid Union waiver allowing [the Respondent] to implement a no[-]smoking policy in Building 242[;] and[] (2) whether there was a serious, emergency situation requiring a smoking ban." Id. The Respondent contended that the health and safety articles of the parties' collective bargaining agreement, read together, constituted a waiver by the Union of its right to bargain concerning the smoking ban at the Respondent's facilities. The Respondent also argued that "a serious/emergency situation existed in [this] case requiring it to create a totally smoke free environment in Building 242." Id. at 7. The General Counsel disputed the Respondent's arguments.

The Judge found that the Respondent did not establish that there was a clear and unmistakable waiver of the Union's right to bargain over the smoking ban. The Judge also found that the evidence did not establish that a serious or emergency situation existed requiring the implementation of a complete smoking ban before the Union was given notice or an opportunity to bargain about the change. Accordingly, the Judge concluded that the Respondent violated the Statute as alleged and recommended a status quo ante remedy rescinding the smoking ban in Building 242.

IV. Respondent's Exceptions

In its first two exceptions, the Respondent argues that the Judge erred when he failed to find that: (1) the Union waived its right to bargain concerning the smoking ban; and (2) based on the facts of the case, there "was a serious/emergency situation" requiring a smoking ban. Exceptions at 1.

In its third exception, the Respondent argues that the Judge erred by discussing the tentative settlement agreement between the parties. Although the Respondent notes the Judge's finding that "the tentative settlement agreement was irrelevant for purposes of the hearing[,]" the Respondent maintains that the Judge "improperly made a finding of fact from an irrelevant tentative settlement agreement." Id. at 8.

Finally, in its fourth exception, the Respondent contends that the Judge's recommended status quo ante remedy rescinding the smoking ban is inappropriate in this case. The Respondent asserts that the following facts show that a rescission of the smoking ban is "entirely inappropriate": (1) on March 12, 1990, the Respondent notified the Union of its desire to negotiate concerning the smoking policy in Building 242; (2) the Respondent banned smoking only to protect an employee's health, inasmuch as "it perceived [that smoking in Building 242 was] a serious/emergency situation" for that employee; (3) the Respondent continued to negotiate with the Union over the smoking policy in Building 242; (4) the parties bargained to impasse on that issue; (5) the issue was submitted to the Panel; and (6) the Panel issued a decision eliminating smoking from Building 242. Id. at 9. The Respondent argues that a final order of the Authority implementing the status quo ante remedy recommended by the Judge would be inconsistent with the final order of the Panel, which is binding on the parties. The Respondent contends that it would be placed in a position of violating either the Panel's order or the Authority's order if the Authority were to order the status quo ante remedy recommended by the Judge.

V. General Counsel's Opposition

The General Counsel asserts that the Respondent's first two exceptions merely repeat arguments that were made previously to the Judge and properly rejected by him. With regard to the Respondent's third exception, the General Counsel states that "[t]he failed settlement agreement was not discussed by the Judge to assist him in rendering a decision on the merits of the case; indeed, the violation of the Statute was clearly established without considering the settlement agreement." Opposition at 2 (emphasis in original). According to the General Counsel, the Judge merely "pointed out the existence of settlement discussions, not for their content, but only to show that the pending [Panel] decision had no bearing on determination of the remedy in this case[.]" Id. at 2-3. The General Counsel argues that even assuming that the Judge should not have included any findings concerning the failed settlement agreement in his decision, the findings "were not necessary to support a finding of a violation in this case." Id. at 3.

Finally, with respect to the Respondent's fourth exception, the General Counsel asserts that a status quo ante remedy is appropriate in this case. The General Counsel asserts that "a later decision of the [Panel] has absolutely no bearing on the remedy in this case." Id. at 4 (citing United States Marine Corps, Washington, D.C., et al., 42 FLRA 3, 14 (1991) (Member Armendariz dissenting as to other matters) (U.S. Marine Corps) and Department of the Air Force, Scott Air Force Base, Illinois, 42 FLRA 266, 273 (1991) (Scott Air Force Base)). The General Counsel argues that "[t]he Authority should not allow Respondent to openly and repeatedly defy the Statute and then, in hindsight, defend on the basis that it has convinced the [Panel] of the underlying merits of the specific situation at hand." Id. (footnote omitted). The General Counsel asserts that "[t]he Union is entitled to a meaningful remedy." Id. at 5. In this regard, the General Counsel argues that the Authority's decision in 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 (1986) (HUD) is distinguishable from this case.

VI. Analysis and Conclusions

We agree with the Judge that the Respondent violated the Statute by changing the smoking policy in Building 242 without first notifying the Union and affording it an opportunity to bargain over the substance, as well as the impact and implementation, of that change. We reject the Respondent's first two exceptions for the reasons stated by the Judge.

Further, we find that the Respondent's third exception is without merit. We note that evidence pertaining to settlement discussions may not be used to prove the truth or falsity of allegations set out in a complaint. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio; and Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 21 FLRA 529, 535 n.1 (1986). However, in this case, the Judge referred to the failed settlement agreement between the parties only in his discussion of the events preceding and following the filing of the unfair labor practice charge. The Judge did not rely on evidence pertaining to the settlement attempt to determine whether the Respondent committed the unfair labor practices alleged in the complaint. We find that the Judge did not err by referring to the parties' settlement attempt in setting forth the background of the proceeding before him.

As for the Respondent's final exception, we conclude that a status quo ante remedy is not appropriate in this case. Specifically, we note that after the Union filed the unfair labor practice charge in this case and while the charge was pending before the Authority: (1) the parties began negotiations concerning the smoking ban in Building 242; (2) the parties bargained until they reached impasse on the issue; (3) the Union filed a request for assistance with the Panel; (4) the Union did not request a return to the status quo ante in the Panel proceeding; and (5) the Panel issued a final decision resolving the impasse. In these unique circumstances, we will not order a status quo ante remedy.

The General Counsel's reliance on U.S. Marine Corps and Scott Air Force Base is misplaced. In U.S. Marine Corps and Scott Air Force Base, the Authority addressed whether the agencies violated section 7116(a)(1), (5) and (6) of the Statute by failing to maintain the status quo while a negotiation impasse was pending before the Panel and found that such determinations are not affected by whatever action the Panel eventually takes regarding the impasse. These decisions concerned the effect of a Panel action on the determination of whether an agency committed an unfair labor practice, not on what the appropriate remedy should be.

Similarly, the Authority's decision in HUD, referenced by the General Counsel in its opposition and post-hearing brief, is not dispositive of the issue in this case. In HUD, the Authority found that the agency violated section 7116(a)(1) and (6) of the Statute by failing to cooperate in impasse procedures. Noting that the agency had complied with the Panel's final order and that no exceptions had been taken to the Administrative Law Judge's recommended order, the Authority found it unnecessary to require the agency to return to the status quo ante. As the circumstances in HUD differ significantly from those in the instant case, we find that HUD does not control the resolution of the issue of the appropriate remedy in this case.

We also reject the General Counsel's argument that inasmuch as the Panel's order in the instant case "did not order [the] Respondent to do anything, unlike its order in HUD, [the Union is] left with no meaningful remedy for [the Respondent's] unlawful conduct." General Counsel's Post-Hearing Brief at 12. In our view, an order requiring the Respondent to cease and desist from its unlawful conduct and to post a notice is a meaningful remedy in the circumstances of this case.

Finally, we reject the General Counsel's argument that the failure to grant a status quo ante remedy would allow the Respondent to "openly and repeatedly defy the Statute and then, in hindsight, defend on the basis that it has convinced the Panel of the underlying merits of the specific situation at hand." Opposition at 4. Our consideration of the events occurring after the Respondent's unfair labor practice is for the limited purpose of determining the appropriate remedy in this case, not for determining whether the Respondent committed the unfair labor practice alleged. Contrary to the General Counsel's contention, the Panel's decision does not provide a defense to the Respondent's violation of the Statute.

For the foregoing reasons, we will modify the Judge's remedy by setting aside the portion of his recommended Order requiring the Respondent to rescind the smoking ban in Building 242.

VII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the 56th Combat Support Group (TAC), MacDill Air Force Base, Florida, shall:

1. Cease and desist from:

(a) Instituting changes in the working conditions of bargaining unit employees by implementing smoking bans without giving notice to the National Federation of Federal Employees, Local 153, the exclusive representative of certain of its employees, and affording it an opportunity to bargain concerning the substance and impact and implementation of said changes.

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

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Notify and upon request negotiate with the National Federation of Federal Employees, Local 153, the exclusive representative of its employees, on any intended changes in conditions of employment, including smoking bans.

(b) Post at its facility 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 the base and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Atlanta 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 herewith.

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 HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT institute changes in the working conditions of bargaining unit employees by implementing smoking bans without giving notice to the National Federation of Federal Employees, Local 153, the exclusive representative of certain of our employees, and affording it an opportunity to bargain concerning the substance and impact and implementation of said changes.

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

WE WILL notify and, upon request, negotiate with the National Federation of Federal Employees, Local 153, the exclusive representative of our employees, on any intended changes in conditions of employment including smoking bans.

_________________________
(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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority of the Atlanta Regional Office, whose address is: 1371 Peachtree Street, NE, Suite 122, Atlanta, GA 30367, and whose telephone number is: (404) 347-2