DEPARTMENT OF HEALTH AND HUMAN SERVICES SOCIAL SECURITY ADMINISTRATION OFFICE OF HEARINGS AND APPEALS SYRACUSE, NEW YORK and LOCAL 1760, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Local 1760, American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Health and Human Services, Social Security Administration (SSA), Office of Hearings and Appeals (OHA), Syracuse, New York (Employer).

    After investigation of the request for assistance, the Panel directed the parties to participate in an informal conference with Staff Associate Gladys M. Hernandez for the purpose of resolving the dispute over an office relocation. The parties were advised that if no settlement were reached, Ms. Hernandez would report to the Panel on the status of the dispute, including the parties' final offers, and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

    Ms. Hernandez met with the parties on September 23, 1993, in Syracuse, New York. With her assistance, the parties resolved 19 of the 21 outstanding issues. She has reported to the Panel on the two remaining issues based on the record developed by the parties. The Panel has now considered the entire record.

    The Employer, 1 of 96 hearing offices nationwide, is responsible for adjudicating appeals of denials of retirement, survivors, medicare, disability, black lung, and supplemental security income claims, and defending its appellate decisions before the Federal courts. The Union represents approximately 19 General Schedule employees working as hearing clerks and assistants, computer specialists, and paralegal specialists.⁽¹⁾ The parties are covered by a 3-year national collective bargaining agreement (CBA) that was to have expired in January 1993, but remains in effect until a successor is implemented. The recently- negotiated successor agreement is awaiting ratification and agency head review.

    The dispute arose during negotiations over the relocation of the Employer's offices to the eighth floor penthouse of a renovated building located 1 1/2 blocks away from the previous site. The relocation was completed on May 7, 1993.

    The parties disagree over (1) the frequency of smoke breaks and (2) the assignment of parking spaces.

1. Frequency of Smoke Breaks

    a. The Employer's Position

    The Employer proposes to allow employees to go outside to smoke during scheduled lunch and rest breaks only.⁽²⁾ There are no supplemental agreements which provide for additional breaks for smoking other than already incorporated within the recently negotiated successor agreement. Employees are no longer permitted to smoke in the stairwell as they were at the old facility, but must "descend eight floors" to go outside to do so; therefore, to allow smokers to continue to take smoke breaks at will, as the Union proposes, would "clearly have an adverse effect on productivity and place an additional burden on nonsmokers who remain at their desks." This would be unfair to nonsmokers.

    b. The Union's Position

    The Union argues that the SSA waived its right to negotiate over smoke breaks at all levels by raising, but not pursuing, the matter during successor agreement negotiations; hence, it has no obligation to bargain over the matter, and chooses not to do so voluntarily.⁽³⁾ This would allow employees to continue the longstanding practice of taking smoke breaks at their discretion, notwithstanding that neither the current CBA nor the successor agreement provides for them. Should the Panel determine that the matter is substantively negotiable, however, it proposes that employees be allowed "a reasonable number of smoke breaks" in addition to their lunch and rest breaks. Since the Employer has not shown that the current practice has been (1) onerous on nonsmokers and agency operations and (2) abused by smokers, the Union's proposal should be adopted.

    Preliminarily, we conclude that the Union's waiver argument⁽⁴⁾ does not preclude the Panel from reaching the merits of this dispute, which essentially concerns whether the parties' current practice regarding smoke breaks should be changed. In this regard, the argument relies on bargaining history involving the parties' successor agreement which is not yet in effect. The parties' dispute, however, arose under the existing CBA. Thus, the Union's argument must be rejected. On the merits of the parties' proposals, after examining the evidence and arguments presented, we shall order the parties to adopt the Employer's proposal. In our view, it provides sufficient accommodation for smokers now required to go outside to smoke to foster a healthy workplace while minimizing disruptions of service to the public. The Union's proposal, on the other hand, is concerned only with the needs of smokers, and fails to balance fairly the interests of smokers, nonsmokers, and the public.

2. Assignment of Parking Spaces⁽⁵⁾

    a. The Employer's Position

    Under the Employer's proposal, management would "notify the Union and fulfill any obligation to bargain" whenever it proposes to change the current parking assignments.⁽⁶⁾ Its proposal mirrors Article 13, § 1, in both the current CBA and recently-negotiated successor agreement. "There [was] no substantial adverse impact on employees due to the relocation" because they also were not provided parking at the previous facility. Moreover, it has assigned the parking spaces in accordance with GSA regulations. In the future, should it determine to provide parking to employees, it also will abide by those regulations.

    b. The Union's Position

    The Union's alternative proposals are as fol