[ v26 p593 ]
The decision of the Authority follows:
26 FLRA No. 73 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-32 Union and DEPARTMENT OF THE ARMY, FORT LEONARD WOOD, MISSOURI Agency Case No. 0-NG-1315 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues concerning the negotiability of four proposals which were raised in connection with the Agency's implementation of a smoking policy at Fort Leonard Wood. The policy was based on the Department of the Army's "Policy on Controlling Smoking" and Department of Defense Directive 1010.10. The Union's proposals are additions to or deletions from paragraph 4 of the plan to implement those at Fort Leonard Wood. /1/ II. Proposals Proposal 1 a. Smoking is prohibited in DA occupied space except for designated smoking areas that are necessary to avoid undue inconvenience to persons who desire to smoke. Except in medical care facilities, smoking will be allowed in corridors, lobbies, and restrooms. (Disputed is the addition of the underscored sentence.) Proposal 2 d. Smoking is prohibited in all military (vehicles and) aircraft. (Disputed is the deletion of the phrase in brackets.) Proposal 3 e. Smoking areas will be designated and posted in all eating facilities in DA occupied buildings (if adequate space and ventilation are available to provide nonsmokers a healthful environment.) (Disputed is the deletion of the phrase in brackets.) Proposal 4 h. Smoking is prohibited at all child development centers and youth activity facilities, except that visiting adults and staff may smoke (out of the presence or view of children) in designated smoking areas. (Disputed is the deletion of the phrase in brackets) Positions of the Parties The Agency summarizes the effect of the proposals as permitting smoking in the following places: corridors, lobbies and restrooms; military vehicles; eating facilities which do not have adequate space and ventilation to provide nonsmokers a healthful environment; and designated smoking areas in child care facilities even if children are present in those areas. The Agency argues that Proposal 4 does not relate to conditions of employment of unit employees and also contends that all the proposals are outside the duty to bargain because of their effect on nonbargaining unit employees. Further, the Agency contends that the proposals are inconsistent with an Agency regulation for which there is a compelling need and that they are inconsistent with the requirement of an effective and efficient Government as mandated by section 7101(b) of the Statute. The Union acknowledges that some of its proposals conflict with the new Army regulation on this matter, but contends that there is no compelling need for the regulation which would bar negotiations. As to Proposal 4, the Union states that it intends for that proposal and the other proposals to apply only to bargaining unit employees and that the effect of those proposals on nonunit employees is small because most smoking will be in designated areas with minimal impact on those employees. As to Proposal 1, the Union contends that it is not contrary to any regulation now in effect but rther that it is consistent with the Army policy. Additionally, the Union argues that the Agency's argument as to an effective and efficient Government is without merit and that any cost arguments raised by the Agency are matters to be resolved by the Federal Service Impasses Panel, not the Authority. Both parties responded to the Authority's request for supplemental statements on the effect of new General Services Administration (GSA) regulations governing smoking in GSA-controlled buildings. The Agency states that the GSA regulations are not applicable because the proposals concern buildings that are not controlled by GSA, but contends that the spirit and intent of the GSA regulations support its position that the proposals are not negotiable. The Union does not assert that the GSA regulations apply here, but contends that those regulations provide agencies with discretion concerning this matter and thus that agencies should bargain with exclusive representatives in this area. IV. Analysis and Conclusions A. Whether Proposal 4 Concerns the Conditions of Employment of Unit Employees The Agency contends that the disputed language of Proposal 4 is outside the duty to bargain because no members of the bargaining unit are assigned to the child care center staff and consequently the proposal does not pertain to the conditions of employment of bargaining unit employees. The Authority has held that there are two basic factors to be considered in deciding whether a proposal involves a condition of employment for unit employees: (1) whether the matter proposed to be bargained pertains to bargaining unit employees; and, (2) the nature and extent of the effect of the matter proposed to be bargained on the working conditions of those employees. Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986). In this case, the Union has shown that bargaining unit employees visit the center to perform maintenance duties. Proposal 4 affects the designation of smoking areas at the child care center and it thereby pertains to working conditions of bargaining unit employees when they are performing duties at the center. Because the proposal concerns the application of the Agency's smoking policy in those situations where unit employees are working at the child care center, we conclude that the proposal, unless otherwise nonnegotiable, is within the Agency's duty to bargain. Moreover, we note that employees are subject to "adverse administrative action" for violations of the Agency's smoking policy. See the document entitled "Policy on Controlling Smoking," Section 3.E., and the document entitled "Controlling Smoking," Section 5, both attached to the Agency's Statement of Position. For this reason also, we find that the subject matter of the proposals clearly concerns the conditions of employment of unit employees. B. Whether the Proposals are Determinative of the Conditions of Employment of Employees Outside the Bargaining Unit The Agency contends that the Union's proposals, particularly Proposals 1 and 2, are outside the duty to bargain because they would determine conditions of employment for nonunit employees by allowing smoking in corridors, restrooms, and other public areas and in military vehicles. In American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA No. 49 (1986), petition for review filed sub nom. American Federation of Government Employees, Local 32 v. FLRA, no. 86-1447 (D.C. Cir. August 11, 1986), the Authority held that it would determine the negotiability of proposals affecting conditions of employment of nonunit as well as unit employees by weighing the right of the union to negotiate over those conditions of employment against the right of the agency to set the conditions of employment of nonbargaining unit employees. If it is determined that the impact of the proposals would be so intrinsically related to the working conditions of nonunit employees as to significantly affect the rights of those employees, management is not required to bargain. On the other hand, where the proposals have only a limited or indirect effect on the interests of employees outside the bargaining unit, they will be subject to appropriate negotiations. Id. In this case we agree with the Union that the impact of the proposals on nonunit employees would be limited and would not significantly affect their rights. Unlike a proposal for a specific competitive area which, if it is to be consistent with OPM regulations, must of necessity determine the competitive area of nonunit employees, the proposals in this case prescribe only the places where unit employees will be permitted to smoke. The proposals do not limit management's ability to determine the conditions under which nonunit employees will or will not be allowed to smoke, nor do the proposals in any other way restrict management's ability to determine the conditions of employment of nonunit employee. While the proposals would expand the areas in which unit employees would be able to smoke and thus would restrict management's ability to limit the effect of that smoking on other employees, that is not a matter concerning the effect of the proposal on nonunit employees. It is a matter primarily concerning the effect of the proposal on nonsmokers rather than nonunit employees. Thus, in our view these proposals are not directly determinative of the conditions of employment of nonunit employees. They are not so integrally or intrinsically related to the working conditions of nonunit employees as to significantly affect the rights of those employees. Consequently, we find that these proposals concern the conditions of employment of bargaining unit employees and, unless otherwise nonnegotiable, are within the duty to bargain. C. Whether There Is a Compelling Need for the Agency's Regulations The Agency argues that all of the proposals are inconsistent with the provisions of Agency regulations, namely the Army Policy on Controlling Smoking, June 6, 1986 and a Department of Defense directive on health matters, DoD Directive 1010.10, "Health Promotion," March 11, 1986, for which there is a compelling need under section 2424.11(a) of the Authority's Rules and Regulations. In essence, the Agency maintains that the portions of the Policy on Controlling Smoking and the DoD Directive that prescribe the areas in which smoking will or will not be permitted are essential for the functioning of the Departments of Defense and Army in an efficient and effective manner for reasons of cost and employee health. The Agency cites various authorities to support its claim that the reduction or elimination of smoking will increase productivity and decrease illness, absenteeism, and premature death among its employees. The Agency contends that it is essential that the smoking policy be applied consistently throughout the Army to all employees, military and civilian, in and out of bargaining units, because of the potential detrimental effects of smoking on nonsmokers. We find that the Agency has failed to meet its burden of demonstrating that a compelling need exists for the Army Policy on Controlling Smoking or the DoD Directive to bar negotiations under section 7117(a)(2) of the Statute. In order for the Authority to find that a compelling need exists for an agency regulation to bar negotiations on a proposal, the agency must (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need under the standards set forth in section 2424.11 of the Authority's Rules and Regulations. See American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 7). In this case, in order to support its allegation of compelling need, the Agency must show that the cited regulations are essential, as distinguished from helpful or desirable, to the accomplishment of its mission or the execution of its functions in a manner which is consistent with the requirements of an effective and efficient Government. See section 2424.11(a) of the Authority's Rules and Regulations. However, generalized and conclusionary reasoning is not enough to support a finding of compelling need. Id. The proposals clearly conflict with particular provisions of the Agency's regulations because, in essence, they expand the areas in which unit employees would be permitted to smoke beyond the limits set forth in those regulations. Compare Proposal 1 with Department of the Army (DA) Policy on Controlling Smoking, Section 3.D.(2)., Proposal 2 with DoD Directive 1010.10, Section F.4.a.(2).(d). and DA Policy, Section 3.D.(3)., Proposal 3 with the DoD Directive, Section F.4.(a).(2).(b). and DA Policy 3.D.(4)., and Proposal 4 with DA Policy 3.D.(8). Moreover, the Agency has demonstrated generally that smoking can have deleterious effects on employee health, and that the costs associated with those effects in terms of workforce effectiveness and productivity can be significant. However, the Agency has not shown that without the particular regulatory restrictions as to the areas in which smoking will be permitted it will be unable to achieve its objectives of greater employee health, enhanced productivity, and reduced operational costs. That is, even assuming that the objectives of the Agency's regulation restricting smoking are related to the accomplishment of its mission in an effective and efficient manner, the Agency has not shown that the particular restrictions set forth in its regulations are essential to those purposes within the meaning of the Authority's criterion. As the Union points out, the Agency's regulations permit smoking in some areas. The Agency has apparently determined therefore that smoking by employees in the workplace is not wholly incompatible with the achievement of its objectives. But if smoking in some areas of the workplace can be permitted consistent with the agency's objectives, then it is not essential to absolutely preclude smoking in order to achieve those objectives. If it is not essential to preclude all smoking, it cannot be essential to limit smoking to one area rather than another. The most that can be claimed for particular limitations in the Agency's regulations as to areas in which smoking is permitted therefore is that they are helpful in achieving those objectives. They have not been shown to be essential. Consequently, we find no merit in the Agency's contention that a compelling need exists for its policy under section 7117(a)(2) so as to bar negotiations on the proposals. For the same reasons, we reject the Agency's contention that the proposals are inconsistent with section 7101(b) of the Statute. In our view, the Agency's arguments concern the merits of the proposals and are better addressed to the Federal Service Impasses Panel or to an interest arbitrator. V. Order The Agency must upon request (or as otherwise agreed to by the parties) bargain concerning Proposals 1 -- 4. /2/ Issued, Washington, D.C., April 20, 1987. /s/ Jerry L. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III, Member /s/ Jean McKee Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Union has withdrawn its petition as to one other proposal and that proposal will not be considered further in this decision. (2) In finding these proposals to be within the duty to bargain, the Authority makes no judgment as to their merits.