---

35 FLRA No. 18

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE NAVY

PUGET SOUND NAVAL SHIPYARD

BREMERTON, WASHINGTON

(Respondent/Agency)

and

INTERNATIONAL FEDERATION OF PROFESSIONAL AND

TECHNICAL ENGINEERS, LOCAL 12, AFL-CIO

(Charging Party/Union)

9-CA-90237

DECISION AND ORDER

March 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on the parties' stipulation of facts. The General Counsel and the Respondent filed briefs with the Authority. The Respondent admits that, as alleged in the complaint, it violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally establishing a smoking policy and thereby changing the working conditions of unit employees without giving the Union notice and an opportunity to bargain over the substance and/or the impact and implementation of that decision. The Respondent excepts only to the General Counsel's request for a status quo ante remedy.

For the reasons set forth below, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally instituting a new smoking policy and that a status quo ante remedy is appropriate in this case.

II. Facts

The Union is the exclusive representative of two bargaining units of professional and technical employees at the Puget Sound Naval Shipyard, including employees in the Plant Facilities Engineering Branch, Code 385.

Prior to January 1989, employees in the Plant Facilities Engineering Branch, Code 385 were allowed to smoke at their desks, in hallways and stairwells, and in all common use areas of Code 385 except conference rooms and one rest room. Stipulation at 2. On January 17, 1989, the Respondent implemented a smoking policy for the Plant Facilities Engineering Branch, Code 385 without providing the Union with notice or an opportunity to bargain about: (1) the decision to establish the policy; (2) the impact of the policy; or (3) the procedures to be used to implement the policy. Id. at 3. The new smoking policy, effective immediately, banned smoking in any Code 385 area including hallways, common use areas, most stairwells, and rest rooms. Under the new policy, smoking was permitted only on the upper level of one stairwell. Id. at 2.

III. Positions of the Parties

A. The Respondent

The Respondent states that it "admits the allegations of unfair labor practice" contained in the complaint. Respondent's Brief at 1 (emphasis in original). However, the Respondent objects to the General Counsel's request for a status quo ante remedy. The Respondent asserts that "the remedy in this case should involve a cease and desist order and a requirement to bargain on the matter." Id. According to the Respondent, "[a]n order to return to the status quo ante will not only subject employees to a known health risk but will also cause the exclusive representative to lose a great deal of credibility in the eyes of many of the employees which they represent." Id.

B. The General Counsel

The General Counsel contends that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally changing its smoking policy. The General Counsel states that prior to changing its smoking policy, an agency must provide a union with notice and an opportunity to bargain concerning the new smoking policy and/or the impact and implementation of the new policy. The General Counsel asserts that because the Respondent failed to provide the Union with notice and an opportunity to bargain about "fully negotiable changes" made in its smoking policy, the Respondent violated section 7116(a)(1) and (5) of the Statute. General Counsel's Brief at 2.

According to the General Counsel, the remedy in this case should consist of a status quo ante remedy in addition to a cease and desist order. The General Counsel contends that a status quo ante remedy "is the appropriate remedy in cases involving fully negotiable changes" and is required here "in order not to render meaningless the obligation to bargain over changes in smoking policy such as are involved in this case." Id. at 3.

IV. Analysis

A. Whether the Respondent Violated the Statute

The matters at issue in this case concern negotiable conditions of employment. See National Association of Government Employees, Local R14-32 and Department of the Army, Fort Leonard Wood, Missouri, 26 FLRA 593 (1987). The Respondent stipulates that it failed to bargain with the Union over the substance and impact and implementation of its decision to establish a new smoking policy, and admits that its conduct constituted an unfair labor practice. We find that the Respondent violated section 7116(a)(1) and (5) of the Statute by implementing a new smoking policy without providing the Union with notice and an opportunity to bargain over the substance and the impact and implementation of that decision.

B. The Remedy

Having found that the Respondent violated the Statute, we must consider what remedy is appropriate. For the following reasons, we find that a status quo ante remedy--one that requires the Respondent to rescind its new smoking policy and reinstate its previous policy--is appropriate in this case.

Absent special circumstances, a status quo ante remedy is warranted where management has changed a negotiable condition of employment without fulfilling its obligation to bargain on that change. Veterans Administration, West Los Angeles Medical Center, Los Angeles, California, 23 FLRA 278, 281 (1986). A return to the status quo ante effectuates the purposes and policies of the Statute and ensures that the obligation to bargain is not rendered meaningless. Department of Health and Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, Oklahoma City, Oklahoma, 31 FLRA 498, 509 (1988), enforced sub nom. Department of Health and Human Services, Indian Health Service, Oklahoma City v. FLRA, 885 F.2d 911 (D.C. Cir. 1989). The Respondent has not established any special circumstances to show that a status quo ante remedy is unwarranted in this case. In these circumstances, we conclude that a status quo ante remedy will effectuate the purposes and policies of the Statute.

Accordingly, we will order the Respondent to rescind its new smoking policy and, upon request, bargain before making any further changes in its smoking policy.

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute (the Statute), the Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington shall:

1. Cease and desist from:

(a) Unilaterally establishing a new smoking policy for employees in the Plant Facilities Engineering Branch, Code 385 without providing the International Federation of Professional and Technical Engineers, Local 12, AFL-CIO, the exclusive representative of its employees, the opportunity to bargain, to the extent consistent with law and regulations, on the decision to establish such a policy.

(b) Failing to provide timely notice to the International Federation of Professional and Technical Engineers, Local 12, AFL-CIO, the exclusive representative of its employees, of its intent to establish a new smoking policy in the Plant Facilities Engineering Branch, Code 385.

(c) In any like or related manner, interfering with, restraining, or coercing its 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) Rescind the new smoking policy established in the Plant Facilities Engineering Branch, Code 385 and reinstate the previous smoking policy.

(b) Notify the International Federation of Professional and Technical Engineers, Local 12, AFL-CIO, the exclusive representative of its employees, of any intention to change the smoking policy in the Plant Facilities Engineering Branch, Code 385 and, on request, bargain with the International Federation of Professional and Technical Engineers, Local 12, AFL-CIO, to the extent consistent with law and regulations, on any decision to change the policy.

(c) Post at its facilities at Puget Sound Naval Shipyard, Bremerton, Washington, 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 Shipyard Commander, 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 the 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, Region IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

---

---

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 for employees in the Plant Facilities Engineering Branch, Code 385 without providing the International Federation of Professional and Technical Engineers, Local 12, AFL-CIO, the exclusive representative of our employees, the opportunity to bargain, to the extent consistent with law and regulations, on the decision to establish such a policy.

WE WILL NOT fail to provide timely notice to the International Federation of Professional and Technical Engineers, Local 12, AFL-CIO, the exclusive representative of our employees, of our intent to establish a new smoking policy in the Plant Facilities Engineering Branch, Code 385.

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

WE WILL rescind the new smoking policy established in the Plant Facilities Engineering Branch, Code 385 and reinstate our previous smoking policy.

WE WILL notify the International Federation of Professional and Technical Engineers, Local 12, AFL-CIO, the exclusive representative of our employees, of any intention to change the smoking policy in the Plant Facilities Engineering Branch, Code 385 and, on request, bargain with the International Federation of Professional and Technical Engineers, Local 12, AFL-CIO, to the extent consistent with law and regulations, on any decision to change the policy.

_________________________
(Agency or 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 its provisions, they may communicate directly with the Regional Director, Region IX, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, California 94103, and whose telephone number is: (415) 744-4000.

---

---

---

FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

---