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48:1062(115)CA - - Marine Corps Base, Camp Lejeune, NC and AFGE, Local 2065 - - 1993 FLRAdec CA - - v48 p1062

[ v48 p1062 ]
The decision of the Authority follows:

48 FLRA No. 115









LOCAL 2065

(Charging Party/Union)




December 7, 1993


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 a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The Respondent and the General Counsel filed briefs.(*)

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by implementing a change in the smoking policy for bargaining unit employees without first providing the Union with notice of the change and an opportunity to bargain over the substance and/or impact and implementation of the change. For the reasons stated below, we find that the Respondent did not violate the Statute as alleged in the complaint. Accordingly, we will dismiss the complaint.

II. Facts

The Union is the exclusive representative of a bargaining unit of all nonappropriated fund employees employed by the Respondent. The Respondent and the Union are parties to a collective bargaining agreement that was in effect at all times material to this case.

Prior to November 1, 1992, bargaining unit employees working in the Respondent's clothing sales warehouse, Building 1501, smoked tobacco throughout the entire warehouse with the knowledge of the Respondent. The Respondent ordered that, effective November 1, 1992, smoking in Building 1501 would cease and that the outdoor, covered loading dock of Building 1501 would be the designated smoking area for that building. The Respondent did not afford the Union notice or an opportunity to bargain over the substance or the impact and implementation of the Respondent's order.

The parties' agreement contains the following provision concerning smoking:


. . . .

Section 10. Smoking

a. A reasonably smoke-free working environment will be provided to those employees who do not wish to smoke while on the job.

b. Smoking will not be permitted in common work areas shared by smokers and nonsmokers unless such areas are adequately ventilated, i.e., sufficiently ventilated as to provide a healthy work environment.

c. The employer will give careful consideration to the smoking preferences of affected employees when establishing and/or modifying common work areas so as to accommodate, to the extent practicable, the preferences of both smokers and nonsmokers.

d. Designated smoking areas will be identified by clearly displayed signs.

e. Employees shall be allowed to smoke outdoors except in compliance with existing regulations.

f. Conflicts over designated smoking areas and/or other issues which arise over smoking will be handled in accordance with the Negotiated Grievance Procedure.

Stipulation, Exhibit 2.

III. Positions of the Parties

The Respondent asserts that the smoking policy and the standards which management uses to determine the designated smoking areas are covered by Article 28, Section 10 of the parties' agreement and that its actions in this case were taken pursuant to its contractual authority and obligation. Citing Marine Corps Logistics Base, Albany, Georgia v. FLRA, 962 F.2d 48, 60 (D.C. Cir. 1992) (Marine Corps, Albany v. FLRA), the Respondent asserts that the General Counsel is "wrong to ignore" the parties' agreement and "require [the] Respondent 'to bargain anew regarding the same matters already addressed in the agreement.'" Brief at 5. The Respondent further asserts that Article 28, Section 10.f of the agreement specifically provides that issues as to the designation of smoking areas and smoking policy are to be settled through the parties' negotiated grievance procedure and, therefore, the Union waived any right it may have had to file an unfair labor practice charge as to the Respondent's actions in this case. Finally, the Respondent contends that this case involves the application of a collective bargaining agreement and that, even if the Respondent breached the contract, such a mere breach does not constitute an unfair labor practice.

The General Counsel alleges that, because smoking policy is a substantively negotiable condition of employment, the Respondent violated the Statute by unilaterally changing its smoking policy without first giving the Union notice and an opportunity to bargain concerning the substance and/or the impact and implementation of the change. The General Counsel contends that the Authority has not adopted the court's decision in Marine Corps, Albany v. FLRA and that, in any event, the Respondent has not demonstrated that the Union waived its statutory right to be notified of and to bargain over any changes in conditions of employment.

IV. Analysis and Conclusions

In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA), we set forth a framework for determining when a matter is contained in or covered by a collective bargaining agreement so as to relieve an agency of the obligation to bargain over the matter. See, for example, USDA Forest Service, Pacific Northwest Region, Portland, Oregon, 48 FLRA 857 (1993); and Sacramento Air Logistics Center, McClellan Air Force Base, California, 47 FLRA 1242, 1244-45 (1993).

In SSA, 47 FLRA at 1018-19, we held that to determine whether an agreement provision covers a matter in dispute, we will initially determine whether the matter is expressly contained in the collective bargaining agreement. We also noted that we will not require an exact congruence of language, but will find the requisite similarity if a reasonable reader would conclude that the provision settles the matter in dispute. If the collective bargaining agreement does not expressly encompass the matter, we will next determine whether the subject matter is so commonly considered to be an aspect of the matter set forth in the agreement that the subject is inseparably bound up with and plainly an aspect of a subject expressly covered by the contract. If so, we will conclude that the subject matter is covered by the agreement provision.

The dispute in this case involves smoking and the designation of smoking areas. The express language of the parties' agreement addresses smoking and the designation of smoking areas. Article 28, Section 10 of the agreement is entitled "Smoking." As set forth above, this section discusses smoking in the workplace, provides that the Respondent will give careful consideration to the smoking preferences of affected employees when establishing and/or modifying common work areas designated as smoking areas, and states that conflicts over designated smoking areas and/or other issues which arise over smoking will be handled in accordance with the parties' negotiated grievance procedure. No argument is made or apparent that Article 28, Section 10 does not apply in this case. The parties have bargained and reached agreement on the subject of smoking, including the designation of smoking areas. Therefore, we find that the matters at issue in this case are covered by the parties' collective bargaining agreement.

Accordingly, consistent with our decision in SSA, we conclude that the Respondent was not obligated to bargain with the Union over the substance or the impact and implementation of its decision no longer to allow smoking in Building 1501 and to designate the outside loading dock of Building 1501 as the smoking area for the building, and did not violate the Statute by refusing to do so. We will dismiss the complaint.

V. Order

The complaint is dismissed.

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

*/ In response to an order from the Authority, the General Counsel demonstrated that a copy of the General Counsel's brief was properly served on all counsel of record. Accordingly, we have considered the General Counsel's brief in this case.