DEPARTMENT OF THE AIR FORCE AIR FORCE MATERIEL COMMAND 88TH AIR BASE WING WRIGHT-PATTERSON AIR FORCE BASE, OHIO and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1138, AFL-CIO

DEPARTMENT OF THE AIR FORCE

AIR FORCE MATERIEL COMMAND

88TH AIR BASE WING

WRIGHT-PATTERSON AIR FORCE BASE, OHIO

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1138, AFL-CIO

Charging Party

Case Nos. CH-CA-40709

CH-CA-50246

NOTICE OF TRANSMITTAL OF DECISION

The above-entitled case having been heard before the undersigned Administrative Law Judge pursuant to the Statute and the Rules and Regulations of the Authority, the under-signed herein serves his Decision, a copy of which is attached hereto, on all parties to the proceeding on this date and this case is hereby transferred to the Federal Labor Relations Authority pursuant to 5 C.F.R. § 2423.26(b).

PLEASE BE ADVISED that the filing of exceptions to the attached Decision is governed by 5 C.F.R. §§ 2423.26(c) through 2423.29, 2429.21 through 2429.25 and 2429.27.

Any such exceptions must be filed on or before SEPTEMBER 11, 1995, and addressed to:

Federal Labor Relations Authority

Office of Case Control

607 14th Street, NW, 4th Floor

Washington, DC 20424-0001

JESSE ETELSON

Administrative Law Judge

Dated: August 11, 1995

Washington, DC


MEMORANDUM DATE: August 11, 1995

TO: The Federal Labor Relations Authority

FROM: JESSE ETELSON

Administrative Law Judge

SUBJECT: DEPARTMENT OF THE AIR FORCE

AIR FORCE MATERIEL COMMAND

88TH AIR BASE WING

WRIGHT-PATTERSON AIR FORCE BASE, OHIO

Respondent

and Case Nos. CH-CA-40709

CH-CA-50246

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1138, AFL-CIO

Charging Party

Pursuant to section 2423.26(b) of the Rules and Regulations, 5 C.F.R. § 2423.26(b), I am hereby transferring the above case to the Authority. Enclosed are copies of my Decision, the service sheet, and the transmittal form sent to the parties. Also enclosed are the transcript, exhibits and any briefs filed by the parties.

Enclosures


UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

DEPARTMENT OF THE AIR FORCE

AIR FORCE MATERIEL COMMAND

88TH AIR BASE WING

WRIGHT-PATTERSON AIR FORCE BASE, OHIO

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1138, AFL-CIO

Charging Party

Case Nos. CH-CA-40709

CH-CA-50246

John F. Gallagher, Esquire

For the General Counsel

James D. Brubaker, Esquire

For the Respondent

Roy James Gricar

For the Charging Party

Before: JESSE ETELSON

Administrative Law Judge

DECISION

In pursuit of a Department of Defense (DOD) program to create a smoke-free workplace, the Air Force Materiel Command (AFMC) entered into a series of interim agreements with authorized constituent bodies of American Federation of Government Employees, AFL-CIO (AFGE), the certified exclusive representative of a Command-wide unit of AFMC employees. At a certain stage of the program's proposed implementation at Wright-Patterson Air Force Base, the Charging Party (Local 1138) submitted to the Respondent proposals regarding the program as it applied to the local work force.1596842867 The Respondent declared that these proposals were "violative of the spirit and intent" of a prior Command-wide agreement and that, by submitting them as its response to the proposed implementation, Local 1138 waived its right to bargain on the subject. The Respondent implemented the proposed smoking policies and this unfair labor practice proceeding resulted.

The consolidated complaints, as amended, allege that the Respondent violated sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing the smoking policies unilaterally, first throughout the base (except for the heating plants) and later in the heating plants. An additional allegation characterizes the unilateral implementation as a repudiation of an earlier agreement to maintain the policies set forth in a previous interim agreement, and therefore as a further violation of sections 7116(a)(1) and (5). The Respondent denies that it had any obligation to bargain over the proposals Local 1138 submitted or to bargain separately concerning the implementa-tion in the heating plant, and denies that it committed any unfair labor practices.

A hearing was held in Dayton, Ohio. Counsel for the General Counsel and the Respondent filed post-hearing briefs.

Findings of Fact

A. Chain of Events

In 1978, the Air Force issued a memorandum entitled "Smoking in Air Force Facilities." In 1986 it issued an "Interim Message Change" to the 1978 memorandum. AFMC's predecessor, Air Force Logistics Command, and AFGE Council 214, the constituent AFGE body that negotiates on the "Command level," entered into a "Memorandum of Agreement" (MOA) in April 1987. This MOA had as its stated purpose the imple-mentation of the 1986 "Interim Message Change" in a manner that protects the health and welfare of employees by providing and maintaining a workplace that is free of unnecessary hazardous substances, ensures an equitable balance between the rights of smokers and non-smokers, and give priority to an employee's right to breathe smoke-free air (GC Exh. 3). Among other substantive provisions, the 1987 MOA provides for the designation of smoking areas after negotiations between "the Employer" and "the Local President or designee." While never making explicit that the designated smoking areas could include indoors areas, the MOA states that "[v]entilation and lighting in these areas will conform to recognized safety standards." The 1987 MOA also provides for voluntary smoke cessation classes.

The Charging Party (Local 1138) is AFGE's agent for representing bargaining unit employees at Wright-Patterson Air Force Base. In implementing the 1987 MOA, Local 1138 and local management at Wright-Patterson entered into a number of agreements. Under one such agreement, in October 1991, a designated smoking area was moved to a specific (indoor) room.

A Department of Defense "Instruction," apparently received at "HQ AFLC/SG" on March 9, 1994, sets the date of April 8, 1994, for all "DoD Components" to commence implementation of certain policies, including the banning of smoking in all workplaces (Resp. Exh. 1).874235270 However, it instructs each "DoD Component" to meet its obligations under the Statute "[p]rior to implementation of a smoke-free workplace in accordance with this Instruction."

Negotiations between AFGE Council 214 and AFMC culminated in an April 1, 1994, MOA on "AFMC Tobacco Reduction Policy." The April 1994 MOA states that was made "pursuant to the USAF Tobacco Reduction Implementation Plan and the AFMC Tobacco Reduction Policy." The meaning and intent of this brief MOA is central to this case, and it is set forth in full as the Appendix to this decision. Portions of the most immediate relevance are set forth below:

2. The parties agree to remain status quo with the current Memorandum of Agreement signed by AFGE Council 214 and AFMC on 29 April 1987 and with all existing activity level agreements accommodating

the smoker and smoking facilities relative to smoking/non-smoking until such time as the matter has been subject to the negotiation process consistent with the Labor Statute.

3. Any bargainable matters left to the discretion of the local commanders such as providing shelter from the elements will be negotiated at the local level.

* * *

6. When there are any conflicts or disputes arising over the Tobacco Reduction Policy, it will be resolved in favor of the non-smoker. However, designated indoor smoking areas shall not be eliminated until such time as outdoor smoking areas have been subject to the negotiation process pursuant to the Labor Statute.

On April 11, the Respondent, by Acting Labor Relations Officer Paul Hepp, wrote to Roy Gricar, Vice President of Local 1138, noting and attaching the April 1 MOA. Hepp's letter, after referring to the MOA, states that "[a]ll remaining issues have been delegated to the field." The letter concludes with the following two paragraphs:

Therefore, it is our intent to implement the AFMC Tobacco Reduction Policy no earlier than 25 April 1994 (Atch 2). We also propose that outdoor smoking will be permitted in those areas where employees currently smoke outdoors. Any further problems that may arise with outdoor smoking will be dealt with on a case-by-case basis.

If you have questions regarding this matter, please advise Ms. Ellen Round at 257-2487. If you wish to bargain aspects of this matter, please submit any bargaining proposals by close of business 22 April 1994.

A notation on the copy of Hepp's April 11 letter that

was submitted into evidence indicates that in a "telecom" on April 26, Hepp extended the requested submission date for proposals until April 28. I infer from a reference in a later document (GC Exh. 8) that on April 26 Hepp also renewed the statement of intent to implement the AFMC Tobacco Reduction Policy.

The "AFMC Tobacco Reduction Policy," referred to in the April 1 MOA and constituting "Atch 2" to Hepp's April 11 letter, is principally a set of policy statements, among which is a prohibition of smoking in "[a]ll indoor work site facilities." The document concludes by stating that: "Final implementation affecting employees in bargaining units will not be accomplished until the bargaining obligation has been satisfied."

On April 28, Local 1138 submitted a comprehensive proposal for an agreement that would constitute the parties' "mutual and binding terms addressing the impact and implementation of the AFMC Tobacco Reduction Policy (undated), given to the Union by . . . letter, dated April 11, 1994 and the Department of Defense 'Smoking Policy,' as distributed to the Nation's news media in March 1994 by the Office of the Secretary of Defense." Among the subjects covered by the Union's proposal were a phase-in period until January 1, 2000, for achievement of a tobacco-free workplace and interim maintenance of indoor smoking areas to be designated pursuant to an employee survey. The proposal also called for negotia-tions to establish additional indoor smoking areas, before all indoor smoking was eliminated, for employees recently added to the bargaining unit pursuant to an Authority unit clarification.

The parties met on May 18 to discuss the Union's proposals. Management representative Ellen Round told Union Vice President Gricar that the proposals for a phase-in period and continuation of indoor smoking were inconsistent with the April 1 Command-level MOA. The parties disagreed as to whether this was so, and agreed to check with their respective negotiators of that MOA to determine whether their positions could be reconciled. Acting on information received from Council 214, Local 1138 resubmitted its proposed agreement with a change regarding the events that would permit changes from the status quo conditions established under the 1987 MOA and all existing local agreements entered into pursuant to that MOA. The proposal also added a provision for providing outdoor smoking shelters after January 1, 2000.

The revised proposal, dated June 10, 1994, covered a number of subjects in addition to the establishment of smoking areas for newly-represented employees, the phased-in elimina-tion of indoor smoking, and the interim maintenance of the status quo for employees in the original bargaining unit. These additional subjects included:

(1) a provision against "unnecessary inconvenience" to employees who desired to smoke;

(2) interim permission to smoke within building entrances under certain weather conditions;

(3) providing "outdoor shelters" after January 1, 2000, pursuant to future negotiations;

(4) minimum specifications for all designated smoking areas, with adequate lighting and appropriate signs and maintenance;

(5) maintenance of indoor smoking in recreation facilities pending negotiations;

(6) permission for employees "to visit designated smoking areas consistent with mission requirements";

(7) voluntary tobacco use cessation classes for employees and their dependents;

(8) furnishing of "tobacco use reduction devices (e.g., medicinal patches, etc.)";

(9) a business decision-making partnership with the Union (impliedly designed in part to generate savings), "with proceeds dedicated to the operation of this program";

(10) an employee wellness program "to educate all employees and their dependents on the benefits of not using tobacco products";

(11) limiting circumstances under which employees will be disciplined for tobacco use;

(12) distribution to employees and publicizing of the agreement;

(13) miscellaneous procedural matters and interaction with other sources of authority--"Statute, Executive Order, regulation, or the MLA."

Ellen Round responded to Local 1138 on behalf of management, in a letter dated June 14. The letter reviews the recent history of the parties' negotiations. It states that on April 26 management advised the union of its proposal to implement the AFMC Tobacco Reduction Policy at Wright-Patterson. The letter concludes:

The "revised" proposals still deal with negotiating current indoor smoking locations, and a phased ban on indoor smoking in the year 2000. We find these proposals to be violative of the spirit and intent of the AFMC/AFGE Council MOA, and that the union has thus waived its right to bargain on the subject of the Tobacco Reduction Policy. Therefore, this letter serves as notification of our intent to implement our proposal of 26 April 1994, by 24 June 1994.

The Respondent implemented the Policy, including elimination of all indoor smoking in buildings occupied by General Schedule bargaining unit employees, without further negotiations. However, apparently through an oversight, the Policy was not then implemented in the Wright-Patterson heating plants, where some Wage Grade bargaining unit employees worked. In early November 1994 the ban on indoor smoking was implemented unilaterally in the heating plants. Local 1138's chief steward for the heating plants made a written demand to bargain over the impact and implementation of the Policy. Labor Relations Specialist Jeff Hines responded to this demand. After reviewing some of the events related above, Hines' letter concluded:

Based on the above events, the bargaining obligation has been met with AFGE Local 1138. Management has been instructed to implement the smoking policy which would prohibit indoor smoking. Although management within the heating plant did not implement the smoking policy as soon as they could have, this does not negate the fact that the issue was bargained with AFGE Local 2238.

B. Interpretative Evidence

Joseph Nickerson, the Executive Director of AFGE Council 214 and its chief (and sole) negotiator of the April 1994 MOA with AFMC, testified that the parties to that agreement had expressed no intention to preclude local bargaining over a number of the subjects later raised in Local 1138's proposals to the Respondent (Tr. 45-50). Nickerson did not specifically address the preclusion of local bargaining on issues relating to indoor smoking. He acknowledged that the MOA resolved the "ultimate" nationwide banning of indoor smoking for AFMC employees (Tr. 45, 54). However, he testified that nothing in the MOA was intended to limit local negotiations, and that paragraph 3 of the MOA (referring to "bargainable matters left to the discretion of the local commanders such as providing shelter from the elements") was not limited to outdoor facilities but referred to "everything that had to do with the smoking issue" (Tr. 57). His explanation for the existence of a Command-level MOA was the imperative, from the Air Force level, to have an AFMC policy. Consistent with that policy, Nickerson opined, the parties at the local level could reach supplemental agreements having the same relationship to the Command-level MOA as other local supplements had to the Master Labor Agreement. (Tr. 58-59.)

Labor Relations Officer Ellen Round testified that Local 1138's April 28, 1994, proposals appeared to her to deal, "for the most part, . . . with a continuation of indoor smoking and what they called a phased-in approach to the year 2000." As such, the proposals appeared to Round to be "contrary with what we understood the Command and Council agreement to be." She called Raymond Rush, the Command Labor Relations Officer and one of AFMC's two negotiators of the April 1994 MOA, to verify her understanding that the MOA banned all indoor smoking and left for local negotiations the location and administration of outdoor smoking areas.

At the local parties' May 18 meeting, Ms. Round understood Local 1138 Vice President Gricar to confirm that his proposals were "basically [for] a continuation of indoor smoking and a long-term phase-out approach to this." When, after their discussions, Gricar sent a new set of proposals, Round could see no substantive difference from the first set.

With respect to other subjects of Local 1138's proposals, Round testified that the proposed health and wellness program and the smoking cessation classes merely duplicated programs that were already in existence.741363444 She noted that the April 1994 Command-level MOA covered the subject of nicotine patches by providing the opportunity for employees to request them if patches were not available under their medical insurance.437457202

Undisputed testimony by Judy Baker, Chief of the Respondent's Work Force Effectiveness (formerly Labor and Employee Management Relations) Section, added the fact that the unions at Wright-Patterson participate in a "Wellness Council" that is part of a wellness program. The wellness program is related to a wellness center and, apparently, to the smoking cessation classes. Baker identified an "AFGE Rep." who was on the Wellness Council in 1987 or 1988. Her testimony implies but does not specify that some constituent unit of AFGE was currently represented on that council. (Tr. 77.)

Raymond Rush, the Command Labor Relations Officer, testified about the negotiation of the April 1994 MOA. His overall summary of the "intent" of the MOA was that it was "to follow through on the directive that we had received from Air Force in terms of implementing the Tobacco Reduction Policy." As part of that policy, "we were working to eliminate indoor smoking."

Rush testified that the discussions leading to the parties' agreeing to paragraph 3 of the MOA (concerning matters to be negotiated at the local level) centered on shelters for outdoor smoking. He testified that the Union also raised a concern about smokers' breaks, and that this concern resulted in a separate provision (within paragraph 5 of the MOA) for local bargaining:

It is not the intent of this agreement to limit smokers to only authorized break times in existence without first affording the Union with the opportu-nity to bargain these changes in conditions of employment.

It was Rush's understanding that, aside from these matters, the parties to the MOA did not envision local bargaining. He contrasted this MOA with other Command-level agreements that contained specific delegations of bargaining responsibility on given subjects. Rush adhered to the basic position that issues appropriate for bargaining were to be negotiated at the level of recognition--between the Command and Council 214--unless the parties at that level agreed to delegate such issues "to the field." In this instance, he testified, the parties had agreed to a limited delegation to deal with "such things as" the "matter of shelters and . . . of the break opportunities" (Tr. 82-83).

Lt. Colonel Paula Black, Chief of Health Promotion and Fitness Branch of AFMC and its co-negotiator (with Mr. Rush) of the April 1994 MOA, testified that its intent was to implement a tobacco-free policy which prohibited smoking in indoor work places. On the question of delegating matters for local bargaining, it was Col. Black's understanding that such matters would be those "that the local bargaining units felt were of concern to them, that would assist the DOD civilians in reducing their tobacco use . . . . [O]ne of those issues

. . . was . . . what type of facilities would be available for outdoor smoking."

Discussion and Conclusions

No issue has been raised regarding the proposition that the subjects over which Local 1138 sought to bargain were subjects ordinarily considered to be negotiable. Nor is there any dispute over the fact that the Respondent refused to entertain Local 1138's proposals and that it implemented changes in conditions of employment. The first set of issues presented here concerns whether the Respondent was obligated to negotiate with Local 1138 on these matters in view of the status of the parties and the previous agreements at the Command level.

The Respondent contends that Local 1138 was not authorized to negotiate over these matters because the level of recognition is Command-wide. It is true that negotiations are required only at the level of recognition absent an appropriate mutual delegation of negotiating authority. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah, 39 FLRA 1409, 1417 (1991) (Ogden). However, the authority to negotiate locally over local smoking issues can be inferred from the Respondent's and Local 1138's past practice of doing so. Further, while the Respondent's explanation, at the time it refused to entertain Local 1138's proposals, had to do with the previous negotiations at the Command level, I do not read that explanation as being based on the Local's lack of authority to negotiate, or on the request being made at the wrong level. In fact, the Respondent had invited proposals from Local 1138. Therefore, it may not now successfully maintain such defenses. Federal Deposit Insurance Corporation, Washington, D.C., 48 FLRA 313, 328 (1993).

The Respondent also contends, however, that whatever the obligation for local bargaining may have been prior to the April 1994 Command-level MOA, that agreement substantially exhausted any obligation within AFMC to negotiate about indoor smoking or related matters. Thus, a major area of dispute is whether the MOA left for local negotiations a potentially broad spectrum of issues concerning implementation of the AFMC Tobacco Reduction Policy or whether it contemplated a narrow range of issues for local discretion--in effect only those mentioned specifically.964237119

In support of the implication in Mr. Rush's testimony that the parties' practice at the Command level was to delegate only specific matters for local bargaining, the Respondent includes in its brief what is represented to be an excerpt from Section 33.02 of the Master Labor Agreement (MLA) covering the entire bargaining unit. I am unable to consider this submission as evidence, since it was not offered into the record. However, I take official notice of an Authority finding that an MLA between AFLC and AFGE Council 214 contains a Section 33.02 that deals with negotiations at the level of exclusive recognition and provides, as the Respondent represents, that "[t]he parties may mutually agree to delegate responsibility for negotiations to subordinate activities and local Union officials." Ogden at 1410, 1421. I infer, in the absence of any communication from the General Counsel with respect to the Respondent's representation, that the quoted language is included in the current MLA covering the AFMC/AFGE bargaining unit.1058900744

Unfortunately, Mr. Rush's testimony, even to the extent supported by the excerpt from the MLA, does little to aid in determining what the parties intended to "leave to the discre-tion of the local commanders," and therefore to be negotiated at the local level, pursuant to paragraph 3 of the April 1994 MOA. The language of paragraph 3 does not appear to require a specific delegation of authority. The words, "left to the discretion of the local commanders," imply a source of authority to local commanders other than a delegation as part of a labor-management agreement. The parties may have contemplated, consistent with Nickerson's testimony, that anything about the smoking issue that was not specifically covered by the MOA was "left to the discretion of the local commanders," whose discretion was further limited only by the "USAF Tobacco Reduction Implementation Plan and the AFMC Tobacco Reduction Policy." This view is supported to some degree by Col. Black, who understood that the "local bargaining units" would "handle any issues [they] felt were of concern to them, that would assist the DOD civilians in reducing their tobacco use."

Against this general line of interpretation stands Mr. Rush's testimony that the parties intended to permit local bargaining only over those subjects specified in the MOA. However, whatever Rush may have thought, it is difficult to give the language of paragraph 3 ("bargainable matters . . . such as providing shelter from the elements") that narrow an interpretation. I conclude, consistent with the general tenor of Nickerson's and Black's testimony, that the April 1994 MOA removed none of the kinds of smoking issues previously negotiated at the local level from the local parties, except that the local parties were foreclosed from negotiating anything inconsistent with the "USAF Tobacco Reduction Implementation Plan" or the "AFMC Tobacco Reduction Policy."

There is no document in the record that is specifically named "USAF Tobacco Reduction Implementation Plan," nor is there any reference to a document with that name except in the April 1994 MOA. I shall therefore assume that it contains no relevant provisions that are not also contained in the "AFMC Tobacco Reduction Policy." That "Policy" addresses some of the issues raised in Local 1138's proposals, but, as has been noted, "final implementation affecting employees in bargaining units" (except for a limitation of smoking to identified "Smoking Permitted" areas effective November 19, 1993) was, by the terms of the "Policy," not to be accomplished "until the bargaining obligation has been satisfied." The issues that both the "Policy" and the Local 1138 proposals appear to address are (1) smoking in indoor work areas (2) outdoor designated smoking areas; (3) work breaks consistent with mission requirements; (4) indoor smoking areas in recreational facilities (Union proposal seeks maintenance of existing areas until "exceptions are negotiated with the Union"); and (5) tobacco use cessation classes to be offered to employees (Union proposal would include employees' dependents).

None of the Union's proposals is inconsistent with any explicit provision in the "Policy" or in the April 1994 MOA. Thus, with respect to the proposals relating to smoking in indoor work areas, neither the "Policy" nor the MOA contains a positive statement regarding the time for implementation. However, the General Counsel does not press this point. Without expressly conceding on these proposals, the General Counsel has chosen not to contest the testimony adduced by the Respondent to the effect (as I interpret this testimony) that implicit in the "Policy," and incorporated by reference in the MOA, is an understanding that the ban on indoor smoking in work areas is to be implemented upon the completion of bargaining over other negotiable matters, but not over the ban itself. The Union's proposals to establish or maintain indoor smoking areas in work areas during a phase-in period are inconsistent with this understanding. Therefore, the Respondent properly refused to entertain them.

While the General Counsel is silent on the Union's proposal that relates to indoor smoking areas in recreation facilities, I find nothing in that proposal that is inconsis-tent with the MOA. The MOA itself does not mention this issue, but the "Policy" contains standards for ventilation or airflow in "designated smoking areas in MW recreation facilities." While the record does not reveal what "MW" means, the "Policy" undisputably contemplates at least some continuation of indoor smoking in recreation facilities. The Union's proposal, which is resisted not for its specific content but implicitly for its subject matter, seems capable of being bargained over without contravening the "Policy."

I have previously identified a number of other smoking-related subjects that the Union's proposals addressed. None of them is inconsistent with the MOA or the "Policy" that it was intended to implement. Some of them, such as the smoking cessation classes and the wellness program, are said by the Respondent to be duplicative of initiatives already in effect. However, while there may be similar programs in effect, they are not necessarily identical to what the Union proposed.272681191 Further, to the extent that these programs are being provided as an exercise of Air Force, AFMC, or Respondent's discretion, the Union is entitled to seek a contractual right to such benefits. The same may be said of the subject of outdoor shelters, which the MOA specifically leaves for local negotiations. Smokers' breaks are also specifically made subject to further bargaining, which Mr. Rush acknowledged to have been delegated to the local level. Other Union proposals, such as the business decision-making partnership, appear to be independent initiatives having no counterpart in existing agreements or practices.

The General Counsel has emphasized the existence of some proposals that the Respondent may not legitimately declare to have been improperly submitted. As noted above, the General Counsel has not attempted to make such a case for each of the proposals.2091198077 It is at least arguable, for example, that the proposal for furnishing of "tobacco use reduction devices" addresses a matter that is "contained in or covered by" the MOA within the meaning of U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993). However, as I do not consider either the question of the Respondent's obligation to bargain over each proposal or the question of the "negotiability" (in the sense that the Authority usually uses that term) of each to have been litigated, I shall not attempt to make a determination as to each proposal. See U.S. Department of the Treasury, Internal Revenue Service, Louisville District, Louisville, Kentucky, 42 FLRA 137, 143, 153-54 (1991). It is sufficient that I find, consistent with the General Counsel's theory of the case, that there were proposals over which the Respondent was not privileged to refuse to negotiate.

In making this finding, I reject the Respondent's further contention that, by submitting proposals that "in essence . . . run contrary to the charter given the local activity by the AFMC/Council 214 Agreement," and could therefore properly be regarded as "no proposals at all," Local 1138 waived its right to bargain. I have found that Local 1138 submitted a number of proposals that were not contrary to that "charter." The Respondent, anticipating a finding that at least some of the proposals were not, argues that the "meat" of the proposals relates to indoor smoking, and that the other issues presented by the Union's proposals are not worth the resources their negotiation would require, once the "meat" is removed. The Respondent cites the purposes of the Statute in support

of this argument, particularly the final sentence of Section 7101(b): "The provisions of this chapter should be inter-preted in a manner consistent with the requirement of an effective and efficient Government." However, the Respondent has not cited, and I have not been able to find, any authori-tative suggestion that either a party or the Authority is empowered to decide that a proposal otherwise giving rise to

a bargaining obligation is too insignificant to warrant enforcement of that obligation. Nor do I believe that this case presents an appropriate vehicle for exploring the possibilities of such a doctrine.

I therefore conclude that the Respondent violated sections 7116(a)(1) and (5) of the Statute when it implemented the new smoking policy without giving Local 1138 the opportu-nity to bargain over aspects of that policy. It follows that the Respondent's extension of the implementation of the new policy to the heating plants also violated sections 7116(a)(1) and (5), but that action was merely a continuation of the original violation and requires no separate or further remedy.

A separate issue, however, is whether the unilateral implementation of the smoking policy also constituted a repudiation of the provision of the April 1994 Command-level MOA that obligated the parties to maintain the status quo relative to smoking "until such time as the matter has been subject to the negotiation process consistent with the Labor Statute," and the further provision that "designated indoor smoking areas shall not be eliminated until such time as outdoor smoking areas have been subject to the negotiation process pursuant to the Labor Statute." The Respondent breached those provisions when it violated its statutory duty as concluded above. Whether that breach amounted to a "repudiation" requires further analysis.

Contract "repudiation" is a unique kind of unfair labor practice that the Authority has sought to distinguish from a contract breach that does not, in itself, violate the Statute. The policy upon which this distinction is grounded would appear to be that to repudiate an agreement is by implication to deprecate the bargaining process by which the agreement was reached, and therefore to reject the principles of collective bargaining. See Internal Revenue Service, Washington, D.C., 47 FLRA 1091, 1098 (1993) (argument of the General Counsel). Thus, in Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211, 1218 (1991), the Authority stated that "[w]here the nature and scope of the breach amount to repudiation of an obligation imposed by the agreement's terms, we will find that an unfair labor practice has occurred in violation of the Statute."

In this case, the Respondent decided that it had no further obligation to negotiate over any of the smoking-related issues raised by Local 1138's proposals. I do not believe that the Respondent's actions pursuant to that decision necessarily amounted to a repudiation of its status quo agreement merely by virtue of the error of its premise. However, I find a repudiation here because the Respondent implemented the changes it had promised to delay--principally the elimination of indoor smoking areas--without completing negotiations even on the subject of outdoor smoking areas, which the status quo agreement explicitly linked with the elimination of indoor areas. Short of an express repudiation (e.g., "We are not bound by those provisions."), I conclude that a repudiation may manifest itself by simply disregarding the obligation that was undertaken. See U.S. Patent and Trademark Office, 45 FLRA 1090, 1111 (1992) (Judge's decision: issue not presented to Authority on exceptions). Here, the Respondent's action constituted a rejection of the efficacy, if not the validity, of the status quo agreement and was, therefore, a repudiation. See Department of Defense Dependent Schools, 50 FLRA 424, 426, 435-36 (1995).

The Remedy

Where management changes a negotiable condition of employment without fulfilling its obligation to bargain over the change, the Authority grants a status quo ante remedy absent special circumstances. U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and U.S. Department of Justice, Immigration and Naturalization Service, Portland, Maine District Office, Portland, Maine and Immigration Service, St. Albans Sub-Office, St. Albans, Vermont, 43 FLRA 241, 252 (1991). That case, like this, involved smoking restrictions, and the Authority found that the potential health risk did not constitute the kind of special circumstances that would warrant denying a status quo ante order.

Arguing against the imposition of such a remedy in the event that a violation is found, the Respondent seeks to place on the Union, because of its demand to negotiate over indoor smoking, the onus for the situation that has occurred. This argument, if persuasive, would prove too much. If, on the assumption that the Union improperly "demanded" negotiations on indoor smoking, the Respondent had been justified in refusing to negotiate over any of the Union's proposals, there would have been no unfair labor practices to remedy. Nor has the Authority indicated that it weighs the background conduct of the respective parties in cases where the unilateral change was in a negotiable condition of employment, as it does in cases where negotiations were required only over the impact and implementation of a change. See Federal Correctional Institution, 8 FLRA 604 (1982).

Finally, the separate unfair labor practice of repudiation of an agreement to maintain the status quo demands, by itself, at least in the absence of extraordinary circumstances, enforcement of that agreement by restoration of the status quo that was prematurely ended. Accordingly, I recommend that the Authority issue the following order.

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, the Department of the Air Force, Air Force Materiel Command, 88th Air Base Wing, Wright-Patterson Air Force Base, Ohio:

1. Shall not:

(a) Unilaterally establish a new smoking policy without first affording American Federation of Government Employees, Local 1138, AFL-CIO, the agent of the exclusive representative of a unit of its employees, the opportunity to bargain, to the extent consistent with law and regulation, on the decision to effectuate such a policy and on the impact and implementation of the policy.

(b) Fail and refuse to honor the April 1, 1994, Memorandum of Agreement between AFGE Council 214 and Air Force Materiel Command by failing and refusing to maintain the status quo with respect to smoking policies until such policies have been subject to the negotiation process consistent with the Statute.

(c) In any like or related manner interfere with, restrain, or coerce its employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

2. Shall take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Rescind the new smoking policy implemented on or about June 24, 1994, at Wright-Patterson Air Force Base and in November 1994 in the heating plants at Wright-Patterson Air Force Base.

(b) Notify American Federation of Government Employees, Local 1138, of any new smoking policy and, prior to implementation, afford it the opportunity to bargain, to the extent consistent with law and regulation, on the decision to effectuate such a policy and on the impact and implementation of the policy.

(c) Post at Wright-Patterson Air Force Base copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Commanding Officer of the Air Force Materiel Command, 88th Air Base Wing, Wright-Patterson Air Force Base, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and 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.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Chicago 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.

Issued, Washington, D.C., August 11, 1995

__________________________

JESSE ETELSON

Administrative Law Judge


NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally establish a new smoking policy without first affording American Federation of Government Employees, Local 1138, AFL-CIO, the agent of the exclusive representative of a unit of our employees, the opportunity to bargain, to the extent consistent with law and regulation, on the decision to effectuate such a policy and on the impact and implementation of the policy.

WE WILL NOT fail and refuse to honor the April 1, 1994, Memorandum of Agreement between AFGE Council 214 and Air Force Materiel Command by failing and refusing to maintain the status quo with respect to smoking policies until such policies have been subject to the negotiation process consistent with the Federal Service Labor-Management Relations Statute.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce its employees in the exercise of the rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL rescind the new smoking policy implemented on or about June 24, 1994, at Wright-Patterson Air Force Base and in November 1994 in the heating plants at Wright-Patterson Air Force Base.

WE WILL notify American Federation of Government Employees, Local 1138, of any new smoking policy and, prior to implementation, afford it the opportunity to bargain, to the extent consistent with law and regulation, on the decision to effectuate such a policy and on the impact and implementation of the policy.

(Activity)

Dated: By:

(Signature) (Title)

This Notice must remain 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Chicago Regional Office, whose address is: 55 West Monroe Street, Suite 1150, Chicago, IL 60603-9729, and whose telephone number is: (312) 353-6306.


APPENDIX

MEMORANDUM OF AGREEMENT

AFMC TOBACCO REDUCTION POLICY

1. This agreement is made pursuant to the USAF Tobacco Reduction Implementation Plan and the AFMC Tobacco Reduction Policy and is between the American Federation of Government Employees represented by AFGE Council 214 and the Air Force Materiel Command (AFMC), Wright-Patterson AFB, Ohio.

2. The parties agree to remain status quo with the current Memorandum of Agreement signed by AFGE Council 214 and AFMC on 29 April 1987 and with all existing activity level agreements accommodating the smoker and smoking facilities relative to smoking/non-smoking until such time as the matter has been subject to the negotiation process consistent with the Labor Statute.

3. Any bargainable matters left to the discretion of the local commanders such as providing shelter from the elements will be negotiated at the local level.

4. When the demand for smoking cessation classes exceeds resources, civilian employees will have priority over military dependents and retirees. If an employee has no medical coverage that provides a means for obtaining relief for nicotine patches and/or gums, the employee may request assistance from the local medical treatment facilities. Those facilities are encouraged to make subject items available to employees attending on-base smoking cessation classes. Where smoking cessation classes are held during duty hours, employees approved for attendance shall be granted excused absence to attend consistent with mission requirements.

5. Smokers and non-smokers alike shall be afforded the same break opportunities consistent with good work practices and the accomplishment of the mission. It is not the intent of this agreement to limit smokers to only authorized break times now in existence without first affording the Union with the opportunity to bargain these changes in conditions of employment.

6. When there are any conflicts or disputes arising over the Tobacco Reduction Policy, it will be resolved in favor of the non-smoker. However, designated indoor smoking areas shall not be eliminated until such time as outdoor smoking areas have been subject to the negotiation process pursuant to the Labor Statute.

7. Upon reaching a joint agreement between AFMC and AFGE, management shall publicize this agreement and the terms agreed to in the local papers at all AFMC facilities within 30 days of the date of this agreement. Only where no newspapers may exist, appropriate publication shall be made in any employee newsletter, Civilian newsletter or in the daily bulletin. Publication of any editorial other than the terms of the agreement will be mutually agreed to between the Union and management.

8. Delegation and written notice shall be made pursuant to and in accordance with Article 33 of the Master Labor Agreement after execution of this agreement.

9. No rights of the Union, employees, or the employer are waived by this agreement.


CERTIFICATE OF SERVICE

I hereby certify that copies of this DECISION issued

by JESSE ETELSON, Administrative Law Judge, in Case Nos. CH-CA-40709 and CH-CA-50246 were sent to the following parties in the manner indicated:

CERTIFIED MAIL:

John F. Gallagher, Esquire

Counsel for the General Counsel

Federal Labor Relations Authority

55 West Monroe Street, Suite 1150

Chicago, IL 60603-9729

James D. Brubaker, Esquire

Department of the Air Force

88 ABW/JA

5135 Pearson Road, Suite 2

Wright-Patterson AFB, OH 45433-5321

Roy James Gricar, Vice-President

American Federation of Government

Employees, Local 1138

P.O. Box 1505

Fairborn, OH 45323

REGULAR MAIL:

National President

American Federation of Government

Employees, AFL-CIO

80 F Street, NW

Washington, DC 20001

Dated: August 11, 1995

Washington, DC

1596842867

The Respondent, 88th Air Base Wing, is an "activity" that provides administrative support for AFMC with respect to its employees located at Wright-Patterson Air Force Base. This administrative support includes personnel functions and, within those functions, labor relations, or, as currently named, "work force effectiveness."

874235270

AFLC (Air Force Logistics Command) merged into AFMC in 1992. See also U.S. Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, 47 FLRA 602, 603 (1993). However, the designation, "HQ AFLC/SG," stamped on the above Instruction with a 1994 date indicates that "AFLC" was still in use for some purposes.

741363444

The April 1994 MOA contains the following references to smoking cessation classes:

When the demand for smoking cessation classes exceeds resources, civilian employees will have priority over military dependents and retirees

. . . . Where smoking cessation classes are held during duty hours, employees approved for attendance shall be granted excused absence to attend consistent with mission requirements.

437457202

The MOA provision Round refers to is the following:

If an employee has no medical coverage that provides a means for obtaining relief for nicotine patches and/or gums, the employee may request assistance from the local medical treatment facilities. These facilities are encouraged to make subject items available to employees attending on-base smoking cessation classes.

964237119

Although I have used the word "implementation" in connection with the subjects over which the Union sought to bargain, I merely borrow the term used by the Union and do not employ it as a term of art. I have not been made aware that the parties view this case as involving management rights within the meaning of section 7106 of the Statute.

1058900744

On the other hand, even in the absence of any response from the General Counsel, I am not prepared to consider the "three examples of [delegation] agreements" attached to the Respondent's brief and not ot