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44:1246(103)NG - - NFFE Local 1379 and Interior, Bureau of Land Management, OR State Office, Portland, OR - - 1992 FLRAdec NG - - v44 p1246

[ v44 p1246 ]
The decision of the Authority follows:

44 FLRA No. 103




LOCAL 1379










May 22, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Cases

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of a single proposal, which relates to the designation of an employee's work area as a smoking area. For the following reasons, we find that the proposal is within the duty to bargain.

II. The Proposal

As Federal Employees in a Federal work site, Federal employees shall be entitled to provisions of:

1.) General Services Administration (41 CFR 101-20.109-10(a)(3));

2.) Eugene District Bureau of Land Management Smoking Policy of 1987: Road Maintenance Shops are smoking areas.

A. Positions of the Parties

According to the Agency, since 1984 it has leased two open bays in the Lane County Fleet Maintenance Facility, which is owned by Lane County, Oregon. The Agency states that the dispute in this case resulted from the application of smoking restrictions imposed by the Oregon Indoor Clean Air Act, the Eugene Municipal Code, and the Lane County Administrative Manual. The Agency claims that upon renegotiation of its lease with Lane County, the county insisted that the Agency comply with the smoking restrictions that had been imposed in the facility as a consequence of the above authorities. According to the Agency, the imposed restrictions prohibit smoking in the bays that it leases.

The Agency states that in response to concerns expressed by the Union during bargaining over the proposed changes in its smoking policy, it pursued various alternatives in an attempt to obtain an exemption from the smoking restrictions from the county. According to the Agency, after the county rejected each of the proposed alternatives, it signed a new lease, which incorporated the smoking restrictions.(1)

Citing Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983), the Agency contends that the proposal concerns a matter that is not within its control. In this regard, the Agency asserts that its efforts to achieve the objectives of the proposal were rejected by the county. Consequently, the Agency contends that the proposal "is not a condition of employment which management has any further authority or obligation to negotiate." Statement of Position at 9.

The Agency describes the proposal as seeking the legal right to smoke in certain areas contrary to the "laws, code and manuals of the State of Oregon, City of Eugene and Lane County." Id. at 10. The Agency contends that the proposal conflicts with state, county, and local law and is, therefore, nonnegotiable.

In its petition, the Union describes the proposal as seeking "to give a legal basis for allowing Federal employees to smoke in certain areas and goes on to specify the Maintenance Shop as that area." Petition at 2. The Union did not file a reply brief.

III. Analysis and Conclusions

Under the Statute, a labor organization that has been accorded exclusive recognition is entitled to act for and negotiate bargaining agreements covering the employees whom it represents. 5 U.S.C. § 7114. The scope of the duty to bargain is defined by various portions of the Statute. Initially, section 7103(a)(12) defines "collective bargaining" as "the mutual obligation" of an agency and an exclusive representative "to meet . . . and to consult and bargain in a good-faith effort to reach agreement with respect to the conditions of employment affecting . . . employees . . . ." Section 7103(a)(14) defines "conditions of employment" as:

[P]ersonnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters--

(A) relating to political activities prohibited under subchapter III of chapter 73 of this title;

(B) relating to the classification of any position; or

(C) to the extent such matters are specifically provided for by Federal statute[.]

Section 7106 of the Statute removes from the duty to bargain specified management rights. Section 7117 excludes from the duty to bargain matters that are inconsistent with Federal law, Government-wide rule or regulation, or an agency regulation for which a compelling need exists.

Nowhere does the Statute exclude from the duty to bargain matters that are inconsistent with state, county, and local law. Consequently, the Agency's claim that the proposal is nonnegotiable because it is inconsistent with state, county, and local law does not present a ground for concluding that the proposal is not within the duty to bargain. See also 5 C.F.R. § 2424.1.

In a related argument, the Agency claims that it has done all that is within its control in an attempt to accommodate the demand made in the proposal that smoking be permitted in the bays that it leases in the Lane County Facility. Specifically, the Agency states that it requested that the county exempt the bays that it leases from the smoking prohibition. It also offered to install a 14-foot high canvas welding screen around two of the bays that it leases and to install a 6,000 cfm exhaust fan in the west gable of one of the bays. According to the Agency, the county rejected both of these proposals.

An agency is obligated to bargain over an otherwise negotiable condition of employment to the extent that it has discretion with respect to that condition of employment even if that discretion is limited to making requests and recommendations to an outside party that controls the condition of employment. See, for example, International Federation of Professional and Technical Engineers, Local 28 and National Aeronautics and Space Administration, Lewis Research Center, Cleveland, Ohio, 38 FLRA 1123 (1990) (Proposal 4); National Federation of Federal Employees, Local 2050 and Environmental Protection Agency, 36 FLRA 618 (1990) (Proposal 18); American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578, 585-86 (1982), enforced sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). Here, the Agency effectively acknowledges that it has the discretion to make requests and recommendations to Lane County concerning the application of the smoking policy in the leased space. Therefore, the Agency is obligated to bargain to the extent that it has discretion.

Insofar as the Agency contends that it already has exhausted the range of actions that are within its discretion in an effort to satisfy the demands presented by the proposal, we find that such arguments do not present an issue that we will address in a negotiability petition filed under section 7117(c)(3) of the Statute. That is, under section 2424.1 of our regulations, we consider in a negotiability petition only issues of whether a proposal is inconsistent with law, rule or regulation. See, for example, Professional Airways Systems Specialists, Chapter 252 and U.S. Department of the Navy, Marine Corps Air Station, Cherry Point, North Carolina, 44 FLRA 434, 439 (1992) (Cherry Point); American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 27 FLRA 363, 364-65 (1987); American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984) (Wurtsmith). To the extent that there are additional issues in dispute between the parties regarding the obligation to bargain in the specific circumstances of this case, such issues should be resolved in other appropriate proceedings. See, for example, Cherry Point; Department of Labor; Wurtsmith.

Based on the foregoing, we conclude that the proposal is within the duty to bargain.

IV. Order

The Agency shall upon request, or as otherwise agreed to by the parties, bargain over the proposal.(2)

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

1. The new lease also added a third bay to the Agency's leased space. 

2. In finding that the proposal is negotiable, we make no judgment as to its merits.