Social Security Administration, Region VII, Kansas City, Missouri and American Federation of Government Employees, Local 1336

[ v55 p536 ]

55 FLRA No. 95

SOCIAL SECURITY ADMINISTRATION
REGION VII, KANSAS CITY, MISSOURI
(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1336
(Charging Party/Union)

DE-CA-70818

_____

DECISION AND ORDER

June 30, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I.     Statement of the Case

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

      The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to provide the Union with advance notice of the Respondent's support for elimination of smoking in the cafeteria of the building in which the Respondent is a tenant and by refusing to bargain over the elimination of smoking in the cafeteria. The Judge determined that the Respondent violated the Statute, as alleged.

      On consideration of the Judge's decision, we find that the Respondent violated section 7116(a)(1) and (5) and adopt the Judge's findings, conclusions, and recommended order to the extent consistent with this decision.

II.     Background and Judge's Decision

      The Respondent is located in the Richard Bolling Federal Center (Bolling Center) along with a number of other Federal agencies. At all relevant times, the Bolling Center had a board of directors that decided issues regarding the building. The board was made up of a representative from each agency tenant. The General Services Administration (GSA) administers the Bolling Center. GSA's policy on smoking in the building cafeteria was that it would eliminate smoking when all the tenant agencies approved. In May 1997, the board unanimously approved the elimination of smoking in the building cafeteria. Among those approving the change was the Respondent's representative. However, the board approval was contingent on each agency notifying the union representing its employees and discharging its bargaining obligations, if any.

      The Respondent notified the Union of the board approval, but refused the Union's request to bargain over the substance, impact, and implementation of the smoking ban in the building cafeteria. The Union filed an unfair labor practice charge and the General Counsel issued a complaint alleging that the Respondent violated section 7116(a)(1) and (5) by failing to provide the Union with advance notice of the Respondent's support for elimination of smoking in the building cafeteria and by refusing to bargain over that elimination.

      Before the Judge, the Respondent claimed that it had not violated the Statute because the subject of smoking was covered by the parties' 1996 national agreement. The Respondent asserted that the subject of smoking was covered by Article 9, Section 17, which provides: "In keeping with the parties' concern for the health, safety, and well being of all SSA [Social Security Administration] employees, there shall be `no smoking' in any SSA facility." Judge's decision at 5 (quoting agreement). The Respondent maintained that the 1996 national agreement expressly encompassed the matter of smoking in multi-tenant buildings. The Respondent further argued that the subject of smoking was inseparably bound up with the other health and safety provisions of Article 9 and that the bargaining history showed that the matter of smoking in multi-tenant buildings had already been negotiated. Alternatively, the Respondent argued that the bargaining history in this case showed that the Union had waived its bargaining rights over smoking.

      The Judge determined that this case was not controlled by the framework established in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA, Baltimore) for resolving "covered-by" defenses, as argued by the Respondent. Instead, he found that this case was controlled by the framework set forth in Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), which prescribes the approach when a respondent claims as a defense to an unfair labor practice charge that a specific provision of the parties' collective bargaining agreement allowed the actions alleged to constitute the unfair labor practice. In the Judge's view, as in IRS, the Respondent was arguing that the specific provisions of Article 9, Section 17 [ v55 p537 ] allowed its actions that had been alleged to violate the Statute. In addition, the Judge noted that although U.S. Department of the Navy, Marine Corps, Washington, D.C., 48 FLRA 278, 281-82 (1993) (Marine Corps) suggests that the Authority would entertain defenses based on both IRS and SSA, Baltimore, the Authority has not specifically ruled that a Respondent may rely on both defenses in the same case.

      In view of the use of the term "SSA facility" in Section 17, the Judge determined that the dispositive issue was whether the building cafeteria was an SSA facility within the meaning of Section 17. He found that it was undisputed that the cafeteria was under GSA control. Given GSA's control and in the absence of any persuasive evidence that shared spaces such as the building cafeteria were encompassed within the term "SSA facility," the Judge ruled that the cafeteria was not an SSA facility within the meaning of Section 17. He found unpersuasive the Respondent's past practice evidence on multi-tenant buildings and bargaining history evidence. In the Judge's view, the bargaining history evidence was too remote and the past practice evidence was inconclusive. Accordingly, he concluded that the Respondent had not established a defense to its bargaining obligations under the standards of IRS.

      Alternatively, he ruled that if SSA, Baltimore were the proper analysis to apply, he would conclude that the Respondent had not established a "covered-by" defense. In reaching this alternative conclusion, he relied on a memorandum of understanding (the Barstow MOU) with respect to the application of Article 4 of the 1996 national agreement pertaining to mid-term bargaining. The MOU provided:

The Parties agree that in the administration of Article 4 of the National Agreement, SSA will continue its current practice of giving notice to AFGE concerning changes in conditions of employment without regard to the Barstow decision.
Unless it is clear that a matter at issue is set forth explicitly and comprehensively in the National Agreement or existing MOU, the subject is appropriate for mid-term bargaining.

In Social Security Administration, 55 FLRA 374 (1999), the Judge had ruled that under the Barstow MOU, a matter was not foreclosed from bargaining unless the subject was set forth explicitly and comprehensively in an agreement.

      In addition, the Judge concluded that the Respondent had failed to establish that the Union had waived its right to bargain over smoking in the building cafeteria. He found considerable doubt as to whether the parties' negotiations even addressed smoking policy in spaces not controlled by SSA or Health and Human Services (HHS) (during the period when SSA was still a part of HHS).

      Accordingly, the Judge ruled that the Respondent had violated the Statute, as alleged. The Judge granted the requested remedy that the Respondent be required, on request, to negotiate with the Union on the actions it will take to remedy its unilateral support of the smoking ban in the building cafeteria, including the possibility of changing its vote and requesting that the ban be rescinded.

III.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent contends that the Judge made four errors.

      First, the Respondent contends that the Judge erred in failing to fully consider its "covered-by" arguments. The Respondent asserts that the Judge failed to explain why IRS precluded full consideration of its "covered-by" defense.

      Second, the Respondent contends that the Judge erred in finding that the matter of smoking in the building cafeteria was not covered by the parties' 1996 national agreement. The Respondent argues that the evidence adduced at the hearing fully supports a determination that the issue of smoking was covered by the 1996 national agreement under the analytical framework of SSA, Baltimore. In addition, the Respondent maintains that the Barstow MOU did not authorize bargaining on the smoking ban in the Bolling Center cafeteria because the matter of smoking is set forth explicitly and comprehensively in the 1996 national agreement.

      Third, the Respondent contends that the Judge erred in failing to find that Article 9, Section 17 of the parties' agreement supported its actions. The Respondent maintains that under IRS, the intent of the parties is to have controlling weight in the interpretation of the collective bargaining agreement. The Respondent asserts that the Judge ignored the parties' intent for a smoke-free workplace, which is evident from the applicable agreement provisions on smoking and bargaining history beginning in 1988. The Respondent also maintains that the implementation of a no-smoking policy in a multi-tenant building in New York demonstrates a past practice and is a clear example of what the contract language meant to the parties in multi-tenant situations. [ v55 p538 ]

      Fourth, the Respondent contends that the Judge erred in failing to find that the Union waived its right to bargain over smoking in the building cafeteria. The Respondent claims that the Union clearly yielded its interest in this area beginning with the 1990 national agreement by agreeing to no smoking provisions in exchange for a number of employee benefits.

B.     General Counsel's Opposition

      The General Counsel contends that, contrary to the claims of the Respondent, the Judge did address the Respondent's "covered-by" defense. The General Counsel further argues that if the Authority were to decide that it is the proper analysis to apply, it is the position of the General Counsel that the Judge correctly rejected the defense. In addition, the General Counsel contends that the Judge properly applied IRS and correctly determined that the Respondent had failed to establish that Section 17 was mutually intended by the parties to be a comprehensive program to eliminate all smoking. Finally, the General Counsel contends that the Judge correctly determined that the Union had not waived its right to bargain over smoking in the building cafeteria.

IV.     Analysis and Conclusions

A.     Analytical Frameworks Addressed by the Judge

      The Judge identified and discussed two analytical frameworks used by the Authority to resolve unfair labor practice allegations. In SSA, Baltimore, the Authority established a three-prong test for determining whether a particular change in conditions of employment is "covered by" an existing collective bargaining agreement between the parties. This assertion is commonly referred to as a "covered-by" defense. [n1]  In IRS, the Authority set forth the analytical framework to be used when a respondent claims as a defense to an unfair labor practice charge that a specific provision of the parties' collective bargaining agreement allowed the actions alleged to constitute the unfair labor practice.

      Both defenses are based on the collective bargaining agreements of the parties. "Covered-by" defenses apply only to statutory obligation-to-bargain cases and require that the Authority determine whether the subject matter about which the union seeks to bargain has already been resolved by previous bargaining. See Social Security Administration, 55 FLRA at 377. In determining whether the subject matter proposed to be bargained is covered by a collective bargaining agreement, the Authority does not determine whether any of the terms of the agreement have been violated.

      Although the IRS framework applies to statutory obligation-to-bargain cases when a respondent relies on a contract provision specifically concerning bargaining (such as a reopener or zipper clause), defenses under IRS also apply to other unfair labor practice allegations. See IRS, 47 FLRA at 1092 (union alleged that respondent violated section 7116(a)(1) and (5) by refusing to recognize the union's president as a steward-at-large). In addition, in determining whether the agreement authorized the respondent's actions, the Authority must not only determine whether the agreement provision covers the action alleged to constitute an unfair labor practice, but also whether the provision permitted the respondent's alleged unlawful action. See IRS, 47 FLRA at 1103.

      As reflected by the discussion of these two frameworks and as this case demonstrates, both defenses could conceivably be raised in the same case. The Authority indicated as much in Marine Corps, cited by the Judge. See 48 FLRA at 281-82. To the extent that there is any confusion as to whether these defenses are mutually exclusive, we take this opportunity to specifically rule that they are not and that a respondent may rely on both defenses in the same case.

B.     We Address Both the IRS and the Covered-by Frameworks in This Case

      It appears that the Judge in this case determined that defenses under IRS and SSA, Baltimore are mutually exclusive and that the Respondent's defense was more appropriately considered under IRS. In the circumstances of this case, we find that the Respondent's defenses to the alleged statutory failure to bargain must be analyzed under both frameworks. [ v55 p539 ]

1.     The Judge Correctly Concluded under IRS that the Parties' Agreement Did not Allow the Respondent's Refusal to Bargain  [n2] 

      In accordance with IRS, in cases where a judge's interpretation of the meaning of the parties' agreement is challenged on exceptions, the Authority determines whether the judge's interpretation is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and federal courts. 47 FLRA at 1110. Thus, the question in this case under the IRS framework is whether the Judge's interpretation of Article 9, Section 17 of the parties' 1996 national agreement is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts. We conclude that it is.

      The plain wording of Section 17 specifically provides that there will be no smoking in any SSA facility. The Judge found that it was undisputed that the cafeteria was under the control of GSA. In view of GSA's control and in the absence of any persuasive evidence that shared spaces such as the building cafeteria were encompassed within the term "SSA facility," the Judge ruled that the cafeteria was not an SSA facility within the meaning of Section 17.

      In disputing the Judge's interpretation and application of Section 17, the Respondent argues that the Judge ignored the parties' intent for a smoke-free workplace. The Respondent also claims that the implementation of a no-smoking policy in a multi-tenant building in New York demonstrates a past practice and is a clear example of what the contract language meant to the parties in multi-tenant situations.

      On the record presented and consistent with the standards and principles applied by arbitrators and the federal courts, see, e.g., Social Security Administration, 55 FLRA at 377, we conclude that the Judge correctly refused to extend the smoking ban for SSA facilities to the Bolling Center cafeteria. As did the Judge, we find the Respondent's bargaining history evidence too remote and its past practice claim inconclusive. Accordingly, we adopt the Judge's determination that under the standards of IRS, the Respondent's refusal to bargain was not allowed by Article 9, Section 17. [n3] 

2.     Respondent's "Covered-by" Defense

      We find that the Respondent properly raised a "covered-by" defense. As we have now specifically held that the affirmative defenses under IRS and SSA, Baltimore are not mutually exclusive, we conclude that the Judge erred by finding that SSA, Baltimore did not apply. However, as explained below, we believe that the record is sufficient to resolve the Respondent's "covered-by" defense.

a.     The Judge Properly Interpreted and Applied the Barstow MOU

      As an alternative to his conclusion under IRS, the Judge ruled that if SSA, Baltimore were the proper analysis to apply, he would conclude that the Respondent had not established a "covered-by" defense under SSA, Baltimore. In reaching this alternative conclusion, the Judge relied on the parties' Barstow MOU, which he had interpreted and applied in Social Security Administration. In Social Security Administration, the Judge ruled on the basis of the clear language of, and bargaining history to, the Barstow MOU that a subject was not foreclosed from further bargaining unless the subject in dispute was set forth explicitly and comprehensively in an agreement.

      In Social Security Administration, we agreed with the Judge's determination that under the Barstow MOU, the respondent had effectively waived its right to assert a "covered-by" defense under SSA, Baltimore to a statutory obligation to bargain except to the extent the matter is set forth explicitly and comprehensively in an agreement. 55 FLRA at 377. The parties in this case do not dispute the relevance of the MOU. Accordingly, for the reasons set forth in detail in Social Security Administration, we also agree with that interpretation in this case. Applying that interpretation, we find that the Barstow MOU is dispositive of the Respondent's "covered-by" defense to the charge that its refusal to bargain violated the Statute. Because we find the MOU dispositive in this case, we express no view on how we would have ruled in the absence of the MOU. [ v55 p540 ]

      The question presented by the application of the Barstow MOU is whether the record supports a conclusion that the smoking policy in multi-tenant buildings is explicitly and comprehensively set forth in the 1996 national agreement. The Respondent does not argue, and it is not otherwise apparent, that the smoking policy with respect to multi-tenant buildings is explicitly addressed in the parties' 1996 national agreement. Article 9, Section 17, on which the Respondent primarily relies, expressly addresses only SSA facilities, and we have adopted the the Judge's determination that the building cafeteria was not an SSA facility within the meaning of Section 17. Moreover, the Judge had found that the Respondent failed to establish that the parties' negotiations even addressed smoking policy in spaces not controlled by SSA or HHS. Consequently, the record provides no basis for concluding that the smoking policy for multi-tenant buildings is somehow explicitly and comprehensively set forth in the 1996 national agreement. Accordingly, we find that on the basis of the Barstow MOU, bargaining on smoking policy in a multi-tenant building was not foreclosed by the 1996 national agreement, as asserted by the Respondent.

b.     We Adopt the Judge's Conclusion that the                                                   Respondent Violated Section 7116(a)(1) and (5) of the Statute

      Based on the foregoing, we adopt the Judge's conclusion that the Respondent violated the Statute. We view the Barstow MOU as also dispositive of the Respondent's argument that the Union waived its right to bargain over smoking in the Bolling Center cafeteria. In our view, the Respondent's waiver argument is nothing more than a reframing of its "covered-by" argument that the parties' bargaining history establishes that the parties' agreement covers the matter of smoking in a multi-tenant cafeteria. As the Barstow MOU required mid-term bargaining over any topic that is not set forth explicitly and comprehensively in any agreement, we find that the MOU forecloses this argument. In rejecting this argument, we do not suggest that all waiver arguments based on bargaining history are necessarily "covered-by" claims.

V.     Order

      Pursuant to section 2423.41(c) of the Authority's Regulations and section 7118 of the Statute, the Social Security Administration, Region VII, Kansas City, Missouri shall:

      1.     Cease and desist from:

           (a)     Unilaterally changing conditions of employment by supporting the banning of smoking in the cafeteria of the Bolling Center without first completing bargaining with the Union.

           (b)     In any like or related manner, interfering with, restraining, or coercing 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)     On request, bargain with the Union over its support for the banning of smoking in the cafeteria of the Bolling Center.

           (b)     Post at its facilities at the Bolling Center copies of the attached notice on forms to be furnished by the Authority. On receipt of such forms, they shall be signed by the Regional Commissioner 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 ensure that such notices are not altered, defaced, or covered by any other material.

           (c)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Denver Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this order, as to what steps have been taken to comply. [ v55 p541 ]


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Social Security Administration, Region VII, Kansas City, Missouri, violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this Notice.

We notify bargaining unit employees that:

WE WILL NOT fail and refuse to bargain with the American Federation of Government Employees, Local 1336 (the Union), the exclusive representative, concerning proposed changes in the working conditions of bargaining-unit employees represented by the Union, including proposals to prohibit smoking in the cafeteria of the Richard Bolling Federal Center (Bolling Center) in Kansas City, Missouri.

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

WE WILL, on request by the Union, bargain to the full extent of our discretion concerning actions to be taken by the Social Security Administration to support a rescission of the ban on smoking by our employees in the cafeteria of the Bolling Center and/or to reduce the impact of that ban on bargaining-unit employees.

      ______________________
(Activity)

Dated:_________ By: _____________________

      (Signature) (Title)

This Notice must be 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, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, and whose telephone number is: (303) 844-5224.


File 1: Authority's Decision in 55 FLRA No. 95
File 2: ALJ's Decision


Footnote # 1 for 55 FLRA No. 95 - Authority's Decision

   In this case, the Judge and the parties refer to the SSA, Baltimore framework as a "contained in/covered by" defense, see, e.g., Exceptions at 3, with the issues of "contained in" and "covered by" resolved under separate prongs of the framework. To dispel any confusion about the application of this analytical framework, we reiterate our view that the approach we use to resolve "covered -by" defenses is a unified approach, in which we sequentially analyze the three prongs, as necessary, to determine whether the defense can be sustained. As we stated in Department of the Treasury, United States Customs Service, El Paso, Texas, 55 FLRA 43, 46-47 (1998), under the first prong, the Authority looks to the express language of the agreement to determine whether it reasonably encompasses the subject in dispute. Under the second prong, the Authority looks to whether the subject in dispute is inseparably bound up with a subject expressly covered by the agreement. If bargaining is not foreclosed under either of these prongs, under the third prong, the Authority examines the parties' intent.


Footnote # 2 for 55 FLRA No. 95 - Authority's Decision