48:1062(115)CA - - Marine Corps Base, Camp Lejeune, NC and AFGE, Local 2065 - - 1993 FLRAdec CA - - v48 p1062

[ v48 p1062 ]
The decision of the Authority follows:

48 FLRA No. 115









LOCAL 2065

(Charging Party/Union)




December 7, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The Respondent and the General Counsel filed briefs.(*)

The complaint 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 the smoking policy for bargaining unit employees without first providing the Union with notice of the change and an opportunity to bargain over the substance and/or impact and implementation of the change. For the reasons stated below, we find that the Respondent did not violate the Statute as alleged in the complaint. Accordingly, we will dismiss the complaint.

II. Facts

The Union is the exclusive representative of a bargaining unit of all nonappropriated fund employees employed by the Respondent. The Respondent and the Union are parties to a collective bargaining agreement that was in effect at all times material to this case.

Prior to November 1, 1992, bargaining unit employees working in the Respondent's clothing sales warehouse, Building 1501, smoked tobacco throughout the entire warehouse with the knowledge of the Respondent. The Respondent ordered that, effective November 1, 1992, smoking in Building 1501 would cease and that the outdoor, covered loading dock of Building 1501 would be the designated smoking area for that building. The Respondent did not afford the Union notice or an opportunity to bargain over the substance or the impact and implementation of the Respondent's order.

The parties' agreement contains the following provision concerning smoking:


. . . .

Section 10. Smoking

a. A reasonably smoke-free working environment will be provided to those employees who do not wish to smoke while on the job.

b. Smoking will not be permitted in common work areas shared by smokers and nonsmokers unless such areas are adequately ventilated, i.e., sufficiently ventilated as to provide a healthy work environment.

c. The employer will give careful consideration to the smoking preferences of affected employees when establishing and/or modifying common work areas so as to accommodate, to the extent practicable, the preferences of both smokers and nonsmokers.

d. Designated smoking areas will be identified by clearly displayed signs.

e. Employees shall be allowed to smoke outdoors except in compliance with existing regulations.

f. Conflicts over designated smoking areas and/or other issues which arise over smoking will be handled in accordance with the Negotiated Grievance Procedure.

Stipulation, Exhibit 2.

III. Positions of the Parties

The Respondent asserts that the smoking policy and the standards which management uses to determine the designated smoking areas are covered by Article 28, Section 10 of the parties' agreement and that its actions in this case were taken pursuant to its contractual authority and obligation. Citing Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48, 60 (D.C. Cir. 1992) (Marine Corps, Albany v. FLRA), the Respondent asserts that the General Counsel is "wrong to ignore" the parties' agreement and "require [the] Respondent 'to bargain anew regarding the same matters already addressed in the agreement.'" Brief at 5. The Respondent further asserts that Article 28, Section 10.f of the agreement specifically provides that issues as to the designation of smoking areas and smoking policy are to be settled through the parties' negotiated grievance procedure and, therefore, the Union waived any right it may have had to file an unfair labor practice charge as to the Respondent's actions in this case. Finally, the Respondent contends that this case involves the application of a collective bargaining agreement and that, even if the Respondent breached the contract, such a mere breach does not constitute an unfair labor practice.

The General Counsel alleg