48 FLRA No. 13

Before Chairman McKee and Members Talkin and Armendariz.⁽¹⁾

I. Statement of the Case

This matter is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in United States Marine Corps, Washington, D.C., Marine Corps Finance Center, Kansas City, Missouri, Marine Corps Central Design and Programming Activity, Kansas City, Missouri, Marine Corps Reserve Support Center, Overland Park, Kansas and Marine Logistics Base, Albany, Georgia v. FLRA, No. 91-1527 (D.C. Cir. Dec. 4, 1992). The court remanded this case to the Authority in light of the court's decisions in Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48 (D.C. Cir. 1992) (Navy, Marine Corps, Albany), and Internal Revenue Service v. FLRA, 963 F.2d 429 (D.C. Cir. 1992) (IRS v. FLRA).

In its decision in 33 FLRA 105 and its decision on reconsideration in 42 FLRA 3 (Member Armendariz, concurring in part and dissenting in part), the Authority found that the Respondents committed unfair labor practices in violation of section 7116(a)(1), (5), and (6) of the Federal Service Labor-Management Relations Statute (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).

For the following reasons, we have decided to remand the matter to the Administrative Law Judge to determine the meaning of the parties' collective bargaining agreement and to issue a recommended decision and order resolving the complaint accordingly.

II. Background

The facts in this case are set forth in the Authority's earlier decisions and will be summarized here.

A. Authority's Decision in 33 FLRA 105

The Marine Corps notified the American Federation of Government Employees (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 was adequate to provide a healthy environment.

The Council requested to bargain over the Program. Upon receiving the Council's request, 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 consultations with the local unions be conducted regarding designation of smoking areas. The Council's proposal required that negotiations over the smoking areas occur. The Marine Corps took the position that the Council's proposal conflicted with a portion of the parties' Master Labor Agreement (MLA) regarding negotiations below the level of recognition and, therefore, that the Marine Corps did not have to bargain over the proposal.

The Council filed an unfair labor practice charge, and the General Counsel issued a complaint, over the Marine Corps' failure to negotiate. The Authority found that the 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 concluded that the essence of the parties' dispute involved differing and arguable interpretations of the MLA. The Authority held 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 procedure. Accordingly, the Authority dismissed the complaint.

B. Authority's Decision on Reconsideration in 42 FLRA 3