27:0033(7)NG - AFGE Local 2324 and Army HQ, 1st Infantry Division, Fort Riley, KS -- 1987 FLRAdec NG

 27 FLRA No. 7
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 2324, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF THE ARMY 
 HEADQUARTERS, 1ST INFANTRY DIVISION 
 FORT RILEY, KANSAS
 Agency
 
                                            Case No. 0-NG-1334
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         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).  The appeal concerns
 the negotiability of a proposal which would permit smoking in military
 vehicles as an exception to the Department of the Army's "Policy on
 Controlling Smoking." We find the proposal to be negotiable.
 
                               II.  Proposal
 
    8.  Smoking shall be permitted in military vehicles.
 
                      III.  Positions of the Parties
 
    The Agency contends that the proposal would allow bargaining unit
 members to smoke in military vehicles where space and ventilation are
 inadequate to provide nonsmokers a healthful environment.  It would have
 an adverse impact on such nonbargaining unit members as military
 personnel, their dependents, managers, supervisors, and visitors to the
 base who could be exposed to smokers in such public conveyances as buses
 and shuttle vans.  The Agency also contends that the proposal is
 inconsistent with the requirements of the Department of Defense's
 Directive 1010.10, "Health Promotion," March 11, 1986, and the
 implementing Department of the Army Policy on Controlling Smoking, June
 6, 1986.  The Agency claims that a compelling need exists under section
 2424.11(a) of the Authority's Rules and Regulations for these
 regulations because the policy of making nonsmoking the norm for
 Department of the Army occupied buildings and work areas is essential to
 the functioning of the Department of the Army in an effective and
 efficient manner.
 
                       IV.  Analysis and Conclusions
 
    We recently decided in National Association of Government Employees,
 Local R14-32 and Department of the Army, Fort Leonard Wood, Missouri, 26
 FLRA No. 73 (1987), that four proposals concerning the implementation of
 an agency smoking policy were negotiable.  Proposal 2 in that case, like
 the proposal in this case, effectively provided that smoking would be
 permitted in military vehicles.  In Fort Leonard Wood, the agency argued
 that the proposals were nonnegotiable because they were determinative of
 the working conditions of nonbargaining unit employees.  In rejecting
 this claim we found that the proposals primarily affected nonsmokers
 rather than nonunit employees and therefore the conditions of employment
 of nonunit employees.  In Fort Leonard Wood, the agency also argued that
 the four proposals were inconsistent with provisions of agency
 regulations for which a compelling need was claimed to exist under
 section 2424.11(a) of the Authority's Rules and Regulations.  The agency
 regulations raised as a bar to negotiations in that case are the same
 regulations raised for that purpose in this case, namely the Army Policy
 on Controlling Smoking, June 6, 1986 and DOD Directive 1010.10.  As to
 this claim, we found in that case that the Agency had 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, we
 determined that the agency had not shown that without the particular
 regulatory restrictions as to the areas in which smoking will be
 permitted it would be unable to achieve its objectives of greater
 employee health, enhanced productivity, and reduced operational costs.
 We therefore concluded that there was no merit in the Agency's
 contention that a compelling need exists for its policy under section
 2424.11(a) of the Authority's regulations so as to bar negotiations on
 the proposal.
 
    The Agency in this case raises the same arguments that the agency
 raised in Fort Leonard Wood.  Thus, for the reasons more fully explained
 in Fort Leonard Wood, we reject these arguments in this case.
 Consequently, the proposal in this case is within the duty to bargain.
 
                                 V.  Order
 
    The Agency must bargain, upon request or as otherwise agreed to by
 the parties, over the proposal.  /*/
 
    Issued, Washington, D.C., May 14, 1987.
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       /s/ Jean McKee
                                       Jean McKee
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (*) In deciding that the proposal is within the duty to bargain, we
 make no judgment as to its merits.