[ v40 p592 ]
The decision of the Authority follows:
40 FLRA No. 55
Before Chairman McKee and Members Talkin and Armendariz.(2)
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding, finding that the Respondent did not violate section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally removing all smoking-related products from sale at the hospital canteen without providing the Union an opportunity to bargain over the substance, impact and implementation of the change.
The General Counsel filed exceptions to the Judge's Decision. The Respondent filed an opposition to the General Counsel's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. The rulings are hereby affirmed. Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order only to the extent consistent with our decision below.
II. Background and Judge's Decision
The Veterans Canteen Service and Medical Center are separate activities at the Leavenworth facility. The Canteen Officer is responsible for the management of the canteen, reports to the Canteen Service Management in Washington, D.C., and serves as a part of the Medical Center's management staff. The Associate Director of the Medical Center acts as a "coordinating contact" between the Canteen Service and the Medical Center and his office is responsible for issuing notices that might affect the canteen and its employees, as well as patients, veterans and visitors to the facility. Hearing Transcript at 55-56, 88.
The Canteen Service operates two canteens at the Leavenworth facility. One canteen is located in the hospital (Building #89) and the other is located in Building #7, about two blocks from the hospital. Most of the bargaining unit employees in this case work at locations closer to the canteen in Building #7 than to the hospital canteen. Hearing Transcript at 54, 78. The Canteen Service was created by statute, 38 U.S.C. §§ 4201 et seq., for the "primary purpose" of making available to patients, at reasonable prices, articles and services essential to the patients' comfort and well-being. Employees and visitors may also use the canteen facilities. The Veterans Administration had been encouraging its Medical Centers to eliminate smoking in their hospitals.
After renovation of the hospital canteen was completed, the Canteen Officer removed all smoking-related products from sale at the hospital canteen. Signs and bulletins announced this decision, but the Union was not provided with advance notice and the opportunity to request bargaining over the substance, impact and implementation of the decision. The other canteen continued to sell smoking-related products.
The Judge stated that the Authority has established two basic factors to consider in deciding whether a proposal involves a condition of employment within the meaning of section 7103(a)(14) of the Statute. Those two factors are: "(1) [w]hether the matter proposed to be bargained pertains to bargaining unit employees; and (2) [t]he nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees." Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236-37 (1985) (Antilles) (emphasis in original). The Judge then reviewed subsequent Authority decisions which have applied the Antilles criteria. Finally, the Judge applied the Antilles criteria to the record in this case.
The Judge noted that the Authority stated as an example of whether a matter pertains to bargaining unit employees, that "a proposal which is principally focused on nonbargaining unit positions or employees does not directly affect the work situations or the employment relationship of bargaining unit employees." Id. at 237. The Judge stated that in this case, the Canteen Service was created by statute for the "primary purpose" of making available to patients, at reasonable prices, articles and services essential to the patients' comfort and well-being. Judge's Decision at 10, citing 38 U.S.C. § 4201.
The Judge found that smoking materials continued to be available for sale to employees in Building No. 7, two blocks away from the hospital canteen. Judge's Decision at 6, 10. In addition, the Judge found that "there is no evidence that the purchase of tobacco products was essential to work performance or affected the employees' work situation or employment relationship." Id. at 10. The Judge concluded that the sale of smoking materials by the Canteen Service under the circumstances of this case is not a condition of employment within the meaning of the Statute, and that the Respondent was under no obligation to negotiate with the Union on the decision to discontinue such sales or the impact and implementation of that decision. Id. at 11.
III. The General Counsel's Exceptions
The General Counsel contends that the Judge erred in failing to find that the sale of smoking materials by the Canteen Service at the hospital canteen constitutes a condition of employment of bargaining unit employees. The General Counsel also argues that the Judge erred by failing to conclude that the Respondent violated the Statute by not providing the Union advance notice of the decision to stop the sale of smoking materials at the hospital canteen, and not providing the Union an opportunity to bargain over the substance, impact and implementation of the decision.
The General Counsel contends that the Judge should have taken official notice, pursuant to section 2423.19(o) of the Authority's Rules and Regulations, "that bargaining unit employees use tobacco products in designated smoking areas during duty hours, including during scheduled break periods. Although no evidence was presented regarding unit employee use of tobacco products, it would be safe to assume that in a bargaining unit of approximately 630, some employees use tobacco products during duty hours in areas designated for that purpose." Exceptions at 2-3.
The General Counsel states that the Authority has held that smoking by unit employees in designated smoking areas while on duty involves a condition of employment. The General Counsel urges the Authority to extend the rationale concerning the designation of smoking areas to find that the purchase of smoking materials is a substantively negotiable condition of employment. The General Counsel contends that "the removal of smoking materials from sale in the Building 89 Canteen 'vitally affects' the working conditions under which unit employees are permitted to smoke in designated smoking areas." Id. at 5. The General Counsel argues that "[w]ithout on-site access to the purchase of smoking materials, the use of designated smoking areas by unit employees could be rendered meaningless." Id.
IV. The Respondent's Opposition
The Respondent states that the General Counsel has the burden of proving the allegations of the complaint by a preponderance of the evidence and claims that the General Counsel has failed to present evidence to support the complaint. The Respondent contends that the General Counsel had to show that the sale of smoking materials in the hospital canteen affects bargaining unit employees' conditions of employment. The Respondent argues that a Judge cannot base a finding on evidence not presented, and that the General Counsel's exceptions regarding the Judge's findings and matters to be officially noticed are attempts "to cover [the General Counsel's] failure to present evidence on the effect of the discontinuance of sale on even one single employee." Respondent's Brief at 5.
V. Analysis and Conclusions
We find, in agreement with the Judge, that the availability for sale of smoking-related products in the hospital canteen has not been established to be a condition of employment. Therefore, the Respondent did not violate section 7116(a)(1) and (5) when it unilaterally removed smoking-related products from sale at the hospital canteen without advance notice to the Union and bargaining over the substance, impact and implementation of the change.
In determining whether a management action gives rise to a duty to bargain under the Statute, when management's exercise of its authority involves a change, it must first be determined whether the action concerns "conditions of employment," which are defined by section 7103(a)(14) of the Statute as "personnel policies, practices, and matters . . . affecting working conditions[.]" See Antilles. See also United States Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, 34 FLRA 1035, 1040 (1990).
In deciding whether a matter involves a condition of employment of bargaining unit employees, the Authority considers whether: (1) the matter pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. Antilles, 22 FLRA at 237.
In this case, we find that the matter of the availability for sale of smoking-related products in the hospital canteen "pertains to" bargaining unit employees. However, the record does not establish that there is a "direct connection" between the availability for sale of smoking-related products in the hospital canteen and "the work situation or employment relationship" of unit employees. In American Federation of Government Employees, Local 2761, AFL-CIO v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) (AFGE, Local 2761), the United States Court of Appeals for the District of Columbia Circuit reviewed the Authority's application of the second part of the Antilles test. The court noted that under Antilles, "the Authority inquires into the extent and nature of the effect of the practice on working conditions." AFGE, Local 2761, 866 F.2d at 1445. In determining whether the matter there in issue was a condition of employment, the court examined whether there was a "link" or "nexus" between that matter and the worker's employment. Id. at 1447, 1449. The court found that where a matter has "a direct effect on the work relationship[,]" it concerns a condition of employment. Id. at 1449. In AFGE, Local 2761 the court found that the agency practice of holding an annual picnic at which awards were presented constituted a condition of employment. Compare American Federation of Government Employees, Local 225 and U.S. Army Armament Research and Development Command, Dover, New Jersey, 11 FLRA 630, 631 (1983) (proposal dealing with employee access to picnic area found not to be a condition of employment).
In applying Antilles to the facts in this case, we agree with the Judge that there is no evidence that the availability for sale of tobacco products "affected the employees' work situation or employment relationship." Judge's Decision at 10. The General Counsel did not establish a "link" or "nexus" between the availability for sale of smoking products in the hospital canteen and bargaining unit employees' work situation. The parties are responsible for creating a record upon which a decision can be made. See National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982), aff'g National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574 (1981). A party failing to sustain its burden acts at its peril. We decline to make a determination regarding an unfair labor practice allegation based on assumptions regarding factual matters where relevant evidence could have been, but was not, presented.
We agree with our dissenting colleague that the fact that the case before us is an unfair labor practice proceeding, not a negotiability dispute, makes no difference in the applicable analysis. In cases involving the question of whether a matter concerns a condition of employment, the requirement that the Authority base its determination on the record presented applies equally to negotiability disputes as well as to unfair labor practice cases. See National Association of Government Employees, Local R1-25 and Veterans Administration Medical Center, Brockton, Massachusetts, 23 FLRA 266 (1986) (VAMC Brockton) (the agency discontinued its practice of providing surplus coffee to employees and the union proposed that the practice not be discontinued; the Authority found in a negotiability proceeding that the union had provided no specific information as to how the disposal of the coffee was related to the work situation of employees or the employment relationship and, therefore, found that the record did not demonstrate that the proposal concerned a matter which is a condition of employment).
While the Authority has found that the determination of "smoking policies," including the designation of smoking and non-smoking areas, concerns conditions of employment, the situation in this case does not concern the determination of such a "smoking policy." See, for example, National Association of Government Employees, Local R14-32 and Department of the Army, Fort Leonard Wood, Missouri, 26 FLRA 593, 595-96 (1987) (Fort Leonard Wood). The issue in this case has no bearing on whether there will be designated smoking areas at the Leavenworth facility or whether employees may smoke while on duty or during nonwork time at the facility.
Accordingly, based on the record in this case, we conclude that no direct connection has been shown to exist between the Respondent's decision to remove smoking materials from sale at the hospital canteen and the work situation or employment relationship of the bargaining unit employees in this case. See VAMC Brockton. Compare U.S. Department of Health and Human Services, Social Security Administration Region X, Seattle, Washington, 37 FLRA 880, 887 (1990) (SSA) (the agency unilaterally discontinued its practice of providing branch offices with subscriptions to the Federal Times; the parties stipulated that copies of the Federal Times were placed in branch offices and were read by employees as a source of information on matters directly relevant to Federal employment, and the Authority found that providing branch offices with subscriptions concerns conditions of employment); Department of the Treasury, Internal Revenue Service (Washington, D.C.); and Internal Revenue Service Hartford District (Hartford, Connecticut), 27 FLRA 322, 325, 334 (1987) (the agency unilaterally removed a microwave oven, a new large refrigerator and other conveniences from the break room; the Authority found that the parties had agreed to the use of the large refrigerator and that managers and unit employees had used the microwave oven and the other conveniences and that the appliances and conveniences were conditions of employment).
Finally, we note that in finding that the decision to cease the sale of smoking materials at the hospital canteen was not a condition of employment, the Judge stated that the hospital canteen was created by statute for the primary purpose of serving the patients and that the change "was not directed to employees alone but to all customers of the Hospital Canteen." Judge's Decision at 11. However, these factors do not affect the analysis used in determining whether the matter at issue involves unit employees' conditions of employment. The effect on bargaining unit employees will be examined regardless of the announced purpose or aim of an agency's action. See SSA, 37 FLRA at 887.
In conclusion, the record does not establish that the availability for sale of smoking-related products at the hospital canteen constitutes a condition of employment of unit employees. Therefore, we find that the Respondent did not have a duty to bargain over the change in the availability of smoking-related products at the hospital canteen. Accordingly, we conclude that the Respondent did not violate section 7116(a)(1) and (5) of the Statute as alleged.
The complaint is dismissed.
Opinion of Member Talkin, dissenting.
In my view, a sufficient nexus has been established between the availability for sale of smoking materials at the hospital and the work situation of the bargaining unit employees. Accordingly, I would find that the availability for sale of tobacco products in the hospital canteen involved a condition of employment and that the Respondent violated section 7116(a)(1) and (5) of the Statute by deciding to discontinue their sale without providing the Union an opportunity to bargain over that decision.
As my colleagues acknowledge, the Authority consistently has held that the establishment of a smoking policy at the workplace involves a condition of employment. For example, U.S. Department of Health and Human Services, Public Health Service, Indian Health Service, Indian Hospital, Rapid City, South Dakota and National Federation of Federal Employees, Local 179, 37 FLRA 972, 974 (1990). There was no evidence introduced in this case that smoking by employees is prohibited in the hospital and every reason to believe that the Union wishes to bargain over the Respondent's new policy because at least some of the approximately 630 bargaining unit employees have been affected by that policy. I note in this regard that approximately 200 bargaining unit employees work in the hospital building.
The canteen is open 7 days a week during the daytime working hours and is open to Medical Center employees, apparently without restriction. See Judge's Decision at 10. In these circumstances, it strains belief to rely, as does the majority, on the absence of proof that any employees in fact bought smoking materials from the canteen. Rather, it is entirely reasonable to assume some of the bargaining unit employees have used the canteen to buy tobacco products for use at the workplace during working hours. On that assumption, I find a sufficient nexus between the availability for sale of these products at the hospital canteen and the bargaining unit employees' work situation to meet the second prong of test set forth in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236-37 (1986).
In reaching this conclusion, I see no difference between the analysis that should be used in an unfair labor practice case, such as this, and the traditional inquiry made by the Authority in a negotiability case. Had this been a negotiability case regarding a proposal requiring the Agency to continue its practice of selling tobacco products at the workplace, I have no doubt but that the Authority would have found the proposal to involve a condition of employment. In that context, I believe that the Authority would have determined that the proposal concerned the conditions of employment of unit employees based on the access of those employees to the facility selling the products and the fact that the union was seeking to retain such sales at the workplace, even if there had been no evidence as to the employees' smoking habits or on-site purchasing record. Cf. National Association of Government Employees, Local R14-32 and Department of the Army, Fort Leonard Wood, Missouri, 26 FLRA 593 (1987) (Proposal 4, which prohibited smoking in child care centers except for visiting adults and staff in designated smoking areas, found to concern condition of employment based only on evidence that unit employees worked at the child care center). In this regard, I stress that I refer only to the issue of whether the proposal would be found to concern a condition of employment; the issue of negotiability would, of course, depend on other evidence in the record.
The majority cites National Association of Government Employees, Local R1-25 and Veterans Administration Medical Center, Brockton, Massachusetts, 23 FLRA 266 (1986) (VAMC Brockton), for the proposition that the Authority will determine a negotiability issue on the record presented and that if there is no demonstration in the record that a proposal concerns a condition of employment, the Authority will not so find. I agree with this characterization of our precedent. In my view, however, this case is distinguishable from VAMC Brockton. In VAMC Brockton the union presented no evidence whatsoever as to the link between the agency's prior practice of providing surplus coffee to employees and the work situation of those employees. 23 FLRA at 267. In contrast, the record here indicates a number of factors that demonstrate the importance to the unit employees of the continued availability of smoking products in the hospital canteen. Thus, the record establishes that unit employees have access to the canteen, that it is open during the employees' working hours, that it would take at least 10 minutes for employees to get to the Medical Center's other canteen that still sells tobacco products if they "hurry, and they wouldn't get to have any type of break." Transcript at 39. Moreover, the other canteen is open far fewer hours than is the canteen located at the hospital. Id. at 37. Finally, I note that there was testimony that a Union steward served on a committee formed to designate smoking areas at the Medical Center, thereby indicating that smoking at the workplace was a matter of concern to the unit employees.
Thus, the evidence indicates that the employees have access to the hospital canteen, that the canteen had, until April 1, 1988, sold tobacco products, and that the Union has sought to retain their sale for the benefit of the employees whom it represents. On this evidence, I would find that the continued availability for sale of tobacco products in the canteen concerns a condition of employment because it pertains to unit employees and because a nexus has been shown between that continued availability for sale and the work situation of those employees.
Further, as the Respondent has admitted that it did not provide the Union with advance notice and the opportunity to request bargaining over the matter, and as the Respondent has not raised any law or regulation that would preclude it from engaging in such bargaining, I would find that the Respondent violated section 7116(a)(1) and (5) by its failure to afford the Union an opportunity to bargain over its decision.
(If blank, the decision does not have footnotes.)
1. The Authority notes that during the pendency of this case the Veterans Administration was reestablished as the Department of Veterans Affairs.
2. Member Talkin's dissenting opinion is set forth after the majority opinion.