48:0278(22)CA - - Marine Corps, Washington, DC and Marine Corps Reserve Support Center, Overland Park, KS and AFGE, Local 2904 - - 1993 FLRAdec CA - - v48 p278



[ v48 p278 ]
48:0278(22)CA
The decision of the Authority follows:


48 FLRA No. 22

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

MARINE CORPS

WASHINGTON, D.C.

AND

MARINE CORPS RESERVE SUPPORT CENTER

OVERLAND PARK, KANSAS

(Respondents)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2904

(Charging Party/Union)

7-CA-80594

(44 FLRA 36 (1992))

_____

DECISION AND ORDER ON REMAND

August 17, 1993

_____

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 Department of the Navy, Marine Corps, Washington, D.C. and Marine Corps Reserve Support Center, Overland Park, Kansas v. FLRA, No. 92-1162 (D.C. Cir. Dec. 10, 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 44 FLRA 36, the Authority (Member Armendariz dissenting) found that the Respondents committed unfair labor practices in violation of section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing a change in designated smoking areas prior to the completion of negotiations with the Union concerning the substance, impact, and implementation of such an action.

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 memorandum of understanding 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 decision and will be summarized here.

This case arose at a local level activity which is part of a nationwide bargaining unit. The level of exclusive recognition is at the national level. A nationwide master labor agreement (MLA) covers the entire bargaining unit.

In 1986, the Marine Corps proposed a Tobacco Prevention Plan (TPP).(2) The parties negotiated a memorandum of understanding (MOU) regarding the implementation of the TPP at the national level and reached agreement on all issues except for the designation of smoking areas at local facilities. The Marine Corps' TPP was implemented at the Marine Corps Reserve Support Center (the Activity) in May 1987. Late in the summer of 1987, the Respondents designated the lunchroom and two rest rooms on the main floor as smoking areas.

On January 12, 1988, the Respondents notified the Union that one-half of the lunchroom would have to be used for computer storage. The parties bargained and agreed that Room 128 would be a nonsmokers' room. On April 7, 1988, management again wrote the Union to inform it that, in management's view, Room 128 was better suited to use as a smokers' break room. The Union agreed.

On May 26, 1988, the Respondents announced to the Union that Room 128 would be available as a smokers' break room, but for the first time announced that smoking would be prohibited in the two rest rooms. On June 7, 1988, the Union requested bargaining and protested the elimination of the rest room smoking areas. The parties met but could not resolve the issue.

The Respondents informed the Union of their intent to implement the changes in designated smoking areas on June 20, 1988. On that day, the Union requested assistance from the Federal Mediation and Conciliation Service (FMCS) and asked that the Respondents delay implementation pending completion of negotiations with the assistance of FMCS. On June 21, 1988, the Respondents refused to delay, stating that they had fulfilled their obligations under the Statute by negotiating the MOU on the implementation of the TPP. The Respondents implemented the revised designated smoking areas and the Union subsequently filed an unfair labor practice charge. A hearing was held before an Administrative Law Judge, who found that, based on the MLA, the Respondent Activity was under no obligation to bargain with the Union and that its refusal to bargain did not violate the Statute because there was no statutory duty to bargain below the level of exclusive recognition.

The Authority found that the Respondents were required to bargain over the decision to make the changes to the designated smoking areas.(3) In so finding, the Authority stated that, "consistent with the Authority's decision in Marine Corps [I], 42 FLRA 3, there is no question that the Respondents were required to bargain over the decision" to eliminate two rest rooms as designated smoking areas. 44 FLRA at 41. The Authority also rejected the Respondents' argument "that, despite the Authority's decision in Marine Corps [I], the complaint in this case should be dismissed because the Statute does not require bargaining at the local level." Id.

III. Analysis and Conclusions

In this case, the Respondents contend that the parties' MLA permitted them to make the changes regarding the designated smoking areas without first completing bargaining with the Union. In Marine Corps I, the Respondents made a similar argument regarding the effect of the same MLA on the Respondents' obligation to bargain. As noted above, in Marine Corps II we recently remanded that matter to the administrative law judge in that case to determine the meaning of the parties' collective bargaining agreement, consistent with our decision in Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), and to issue a recommended decision and order resolving the complaint accordingly. As in Marine Corps II, we find that the record in this case contains insufficient information to ascertain the meaning of the provisions of the parties' MLA and to determine whether the MLA allowed the Respondents to make the changes regarding the designated smoking areas without first completing bargaining with the Union. Accordingly, for the reasons fully set forth in Marine Corps II and consistent with that decision, we will remand this case to the Administrative Law Judge so that the Judge can obtain sufficient information on which to determine the meaning of Article 4 of the parties' MLA. The Judge should give the parties an opportunity to provide evidence and testimony on the meaning of Article 4, Sections 1 and 2 of the parties' MLA. The Judge should then determine whether Article 4 of the MLA allowed the Respondents to make the changes regarding the designated smoking areas without first completing bargaining with the Union.

Additionally, the Respondents in this case contend that the parties' MOU permitted them to make the changes regarding the designated smoking areas without first completing bargaining with the Union, because the MOU covered the implementation of the TPP. The Respondents assert that the banning of smoking in the two rest rooms resulted from, and was an integral aspect of, the TPP, the subject of the MOU. Consistent with the court's decision in Navy, Marine Corps, Albany, the Authority has established a test for determining when a matter is contained in or covered by a collective bargaining agreement so as to relieve an agency of the obligation to bargain over the matter. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (Social Security). Specifically, in Social Security the Authority stated that where an agency asserts "that it has no obligation to bargain based on the terms of a negotiated agreement[,]" the Authority will examine whether the matters over which the union seeks to bargain are contained in or covered by provisions of a negotiated agreement so as to preclude further bargaining on those matters during the term of that agreement. Id. at 1016 n.7.

In Social Security, we held that to determine whether an agreement provision covers a matter in dispute, we will initially determine whether the matter is expressly contained in the agreement. We noted that we will not require an exact congruence of language, but will find the requisite similarity if a reasonable reader would conclude that the provision settles the matter in dispute. If the matter in dispute is not expressly contained in the collective bargaining agreement, we will determine whether the subject matter is inseparably bound up with or so commonly considered to be an aspect of the matter set forth in the provision such that the negotiations will be presumed to have foreclosed further bargaining over the matter, regardless of whether it is expressly articulated in the provision. If so, we will conclude that the subject matter is covered by the agreement provision.

In this case, the Respondents contend that the parties' MOU precluded further bargaining on the designation of smoking areas. According to the Respondents, all matters relating to smoking areas are based on the TPP and the parties had completed bargaining and entered into the MOU on the TPP. Because the record in this case was developed prior to the issuance of our decision in Social Security, we will remand this aspect of the case as well to the Judge to allow the parties the opportunity to provide evidence and testimony, based on the test announced in Social Security. The Judge should determine whether the designation of smoking areas is covered by the MOU on the TPP.

Therefore, consistent with Marine Corps II, we remand this case to the Judge so that the Judge can determine, based on a full record and applying the tests discussed above, whether Article 4 of the MLA allowed the Respondents to refuse to negotiate with the Union on the change in the designation of smoking areas and whether the MOU foreclosed further bargaining on the matter in dispute. The Judge should resolve the unfair labor practice complaint accordingly.

IV. Order

This case is remanded to the Administrative Law Judge for further proceedings consistent with this decision.

Concurring Opinion of Member Armendariz

In my separate opinion in the Authority's previous decision in this case, 44 FLRA at 46, I found, contrary to the other Members of the Authority, that the Respondents did not commit the unfair labor practices alleged. In my view, this case did not concern the negotiability of the designation of smoking areas, but rather concerned the level at which negotiations on the designation of smoking areas would occur. In agreement with the Administrative Law Judge, I determined that the parties' MLA already discussed the level at which such bargaining would occur.

However, in light of the court's remand in this case and our recent decisions in Social Security and IRS, and consistent with my opinion in Marine Corps II, 48 FLRA No. 13, I agree that a remand is appropriate at this time to allow the parties an opportunity to provide evidence and testimony on the meaning of Article 4, Sections 1 and 2 of the parties' MLA and the applicability of the MOU so that the Judge can determine whether Article 4 of the MLA allowed the Respondents to refuse to negotiate with the Union on the change in the designation of smoking areas and whether the MOU foreclosed further bargaining on the matter in dispute.




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

1. Member Armendariz's concurring opinion is set forth at the end of this decision.

2. The proposal to implement the TPP gave rise to a dispute which resulted in a decision by the Authority in United States Marine Corps, Washington, D.C. and Marine Corps Finance Center, Kansas City, Missouri, 33 FLRA 105 (1988), reversed on reconsideration 42 FLRA 3 (1991) (Member Armendariz concurring in part and dissenting in part) (Marine Corps I). The Authority's decision in Marine Corps I was appealed to the United States Court of Appeals for the District of Columbia Circuit. The court remanded the case to the Authority in light of the court's decisions in Navy, Marine Corps, Albany and IRS v. FLRA. On August 10, 1993, the Authority remanded the matter to the administrative law judge in that case to determine the meaning of the parties' MLA and to issue a recommended decision and order resolving the complaint accordingly. United States Marine Corps, Washington, D.C. et al., 48 FLRA No. 13 (1993) (Marine Corps II).

3. In a dissenting opinion, Member Armendariz stated that, consistent with his opinion in Marine Corps I, he would find that because the change involved a national lev