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52:0686(66)CA - - Justice, INS, Chicago District Office, Chicago, IL and AFGE, Local 2718 - - 1996 FLRAdec CA - - v52 p686

[ v52 p686 ]
The decision of the Authority follows:

52 FLRA No. 66











(Charging Party/Union)




December 10, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

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 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 refusing to resume negotiations with the Union concerning the Respondent's smoking policy. For the reasons discussed below, we remand this case to the Regional Director for action consistent with our decision.

II. Stipulation

The American Federation of Government Employees, National Immigration and Naturalization Service Council, AFL-CIO (the Council), is the exclusive representative of a nationwide consolidated unit of Immigration and Naturalization Service employees. AFGE Local 2718 (the Union) is an agent of the Council for the purpose of representing the Respondent's unit employees.

At all times relevant to this case, the Respondent has had in effect a policy prohibiting indoor smoking. Smoking is currently permitted only outside the Respondent's facility in an area known as Quincy Court.

In April 1993, the Respondent orally implemented a policy prohibiting all smoking in front of its facility. When the Union learned of the new policy, it advised the Respondent that negotiations concerning this change had not been conducted, as required by Article 9 of the parties' collective bargaining agreement.(1) The Respondent then agreed to negotiate over this issue, specifically proposing that employees be sent a written directive prohibiting congregating or smoking in front of its facility. The Union proposed that designated smoking areas be provided indoors.

When the parties were unable to reach agreement on these issues, they enlisted the assistance of the Federal Mediation and Conciliation Service. Agreement was subsequently reached concerning the issue of congregating in front of the Respondent's facility. However, no agreement was reached concerning the issue of indoor smoking. Consequently, a request for assistance was filed with the Federal Service Impasses Panel (Panel).

The Panel issued a decision wherein it declined to assert jurisdiction over the parties' dispute. According to the Panel:

[I]t is unclear that an impasse exists within the meaning of 5 C.F.R. § 2470.2(e) of the regulations.[(2)]

In this regard, our investigation reveals that the Union proposes that the Employer "follow the regulations as set forth in FPM 101-20.105-3." We construe the Union to be proposing that the Employer comply with the Government[-]wide regulations regarding smoking set forth at 41 C.F.R. Part 101-20.105-3.[(3)] In our view, a proposal seeking compliance with Government[-]wide regulations is not a matter for impasse resolution, but rather should be addressed in other appropriate forums, for example, under the parties' negotiated grievance procedure.

Stipulation, Exhibit 17.

In light of the Panel's decision, in November 1993, the Union requested that bargaining on the Respondent's current smoking policy be "re-open[ed]." Stipulation, Exhibit 18. The Union did not submit any proposals with its request and no proposals were thereafter submitted. Since that time, the Respondent has refused to engage in further negotiations.

III. Positions of the Parties

A. The General Counsel

The General Counsel asserts, citing well-settled Authority precedent, that proposals concerning the implementation of an agency's smoking policy involve negotiable conditions of employment of unit employees. The General Counsel contends that, as a result, the Respondent's refusal to re-open negotiations concerning its smoking policy, after the Panel declined to assert jurisdiction, constituted a violation of section 7116(a)(1) and (5). The General Counsel also maintains that although the Panel suggested that the "issue of the Respondent's compliance with Government-wide smoking regulations" be resolved through the parties' negotiated grievance procedure, this suggestion did not mean it was required to file a grievance over this issue. General Counsel's Brief at 9.

In addition, the General Counsel disputes any assertion that the Respondent initially entered into negotiations with the Union solely out of concern for good labor relations and, consequently, was free to withdraw from negotiations. First, the General Counsel points out that, as the Respondent's decision to ban smoking in front of its facility was a change in conditions of employment, it was required to negotiate over this change under Article 9, Section A of the parties' bargaining agreement. In the alternative, the General Counsel maintains that under current Authority precedent, set forth in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004, 1013 (1993), an agency is required to bargain over negotiable union-initiated proposals concerning matters that are not contained in or covered by a bargaining agreement, unless the union has waived its right to bargain about the subject matter involved. The General Counsel argues that as the Respondent's smoking policy is not contained in or covered by the parties' bargaining agreement and, as the Union did not waive its right to bargain over this matter, the Respondent was obligated to re-open negotiations with the Union upon its request.

B. The Respondent

The Respondent defends its refusal to re-open negotiations with the Union on both statutory and contractual grounds. With regard to its arguments that are grounded in the Statute, the Respondent contends that it had no duty to bargain over a nonnegotiable proposal. The Respondent further contends that the proposal the Union submitted to the Panel as its "last best offer"--to "follow the regulations as set forth in FPM 101-20.105-3"--was not a proposal over which the parties had bargained. Respondent's Brief at 4. As the parties had not reached impasse over this proposal, the Respondent argues that there was no impasse for the Panel to resolve pursuant to section 7119(b), and it was not obligated to give the Union a "second chance" to bargain after the Union erroneously caused the Panel to decline to assert jurisdiction. Id. at 5.

The Respondent also states that its decision to bargain with the Union was predicated solely on its desire to improve labor-management relations. The Respondent maintains that, in spite of this, the Union responded by bargaining in bad faith, which it claims is illustrated by its conduct in submitting a new proposal to the Panel. The Respondent further argues that, in any event, its "ban on [smoking] in front of the entrance doors was d[e] minimis because employees have only to walk two or three steps to put themselves on public property." Id. at 10-11.

With regard to the Respondent's defenses that are grounded in the parties' bargaining agreement, the Respondent asserts that the parties were already bound by Article 2, which requires compliance with Government-wide rules and regulations.(4) The Respondent also argues that it was not obligated to re-open negotiations with the Union under Article 9, Section A because the proposal the Union submitted to the Panel does not concern the impact and implementation of its smoking policy change, as that provision requires. In addition, the Respondent contends that Article 9, Section A requires that all proposals be submitted within 10 workdays after notice of a proposed change has been provided. In the Respondent's view, as the Union's request to re-open negotiations was not made until 5 months after notice of the change, at a time when it could not submit new proposals, its request to bargain was untimely.

Finally, the Respondent asserts that the parties' ground rules did not permit proposals to be "dribble[d] onto the bargaining table" or submitted after the Panel declined to assert jurisdiction. Id. at 3.

IV. Analysis and Conclusions

In order to determine whether the Respondent was obligated to resume bargaining over its smoking policy after the Panel declined to assert jurisdiction, and to properly assess the Respondent's defenses, findings with respect to the following material facts are required:

  • What was the parties' intent in negotiating Article 2 of the parties' bargaining agreement? What is the bargaining history of, and are there any relevant past practices concerning, this provision? The Respondent claims that under Article 2, the parties were already required to comply with Government-wide regulations. However, the stipulated record does not establish the facts that are necessary to interpret and apply this provision, pursuant to Internal Revenue Service, Washington, D.C., 47 FLRA 1091, 1103 (1993) (IRS).(5)
  • What is the meaning of Article 9, Section A of the parties' bargaining agreement? The Respondent asserts that the Union's bargaining request was time-barred by this provision. However, like the foregoing discussion concerning Article 2, the stipulated record fails to include the facts necessary to interpret and apply Article 9, Section A pursuant to IRS.
  • What were the factual circumstances under which, and the reasons why, the Union submitted to the Panel a proposal that referred to FPM 101-20.105-3? The Respondent asserts, and the General Counsel denies, that the Union acted in bad faith by offering the Panel a proposal over which the parties had never bargained. However, the record before us is devoid of the factual findings necessary to determine whether the Union's conduct before the Panel provides a defense to the Respondent's refusal to bargain. We note, in this regard, that the parties have stipulated to the fact that the Union did not submit any proposals with its request and has not submitted any proposals since that time. Thus, the proposal that was before the Panel does not appear to have been at issue when the Respondent refused to bargain.

In order to permit the establishment of these facts, through either further stipulations or administrative law judge findings, we remand this case to the Regional Director for appropriate action.(6)

V. Order

This case is remanded to the Regional Director for further processing consistent with the decision.(7)

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

1. Article 9, entitled "Impact Bargaining and Mid-Term Bargaining," pertinently provides:

A. The parties recognize that from time-to-time during the life of the Agreement, the need will arise for Management to change existing Service regulations covering personnel policies, practices, and/or working conditions not covered by this Agreement. The Service shall present the changes and explanation of the changes it wishes to make to existing rules, regulations, and, existing practices to the Union in writing. . . . The Union will present its views and concerns (which must be responsive to either the proposed change or the impact of the proposed change) within a set time after receiving notice from Management of the proposed change. The time will be:

Twenty-two (22) Workdays at National Level
Ten (10) Workdays at Regional Level
Ten (10) Workdays at District Level

If disagreement exists, either the Service or the Union may serve notice on the other of its interest to enter into formal negotiations on the subject matter. . . .

Stipulation, Exhibit 3.

2. Section 2470.2(e) of the Authority's Regulations provides:

The term "impasse" means that point in the negotiation of conditions of employment at which the parties are unable to reach agreement, notwithstanding their efforts to do so by direct negotiations and by the use of mediation or other voluntary arrangements for settlement.

5 C.F.R. § 2470.2(e).

3. 41 C.F.R. § 101-20.105-3, in general, establishes requirements for controlling smoking in GSA-controlled buildings and facilities. The regulations recognize the health hazards of passive smoking on nonsmokers and require that smoking be kept to a minimum in areas where there are nonsmokers. Although the regulations give agency heads the authority to designate smoking and nonsmoking areas in Federal buildings, they further give agency heads the authority to establish "more stringent guidelines" than those provided by the regulations. 41 C.F.R. § 101-20.105-3(a)(3).

4. Article 2, entitled "Effect of Law and Regulation," pertinently provides:

A. In the administration of all matters covered by this Agreement, the parties are governed by existing or future laws; and government wide rules or regulations in effect upon the effective date of this Agreement. In the administration of this Agreement, should any conflict arise between the terms of this Agreement and any present or future laws, provisions of such laws shall supersede conflicting provisions of this Agreement.

Stipulation, Exhibit 3.

5. In IRS, 47 FLRA at 1110-11, the Authority held that when a respondent claims as a defense to an alleged unfair labor practice that a specific provision of the parties' collective bargaining agreement permitted the actions alleged to constitute an unfair labor practice, the meaning of the provision must be ascertained. In addition to the express terms of the bargaining agreement, other facts relevant to making such a determination include the intent of the contracting parties, the parties' bargaining history, and any alleged past practices.

6. Our remand of this case is consistent with the Authority's policy of remanding cases where material issues of fact are not resolved by a stipulated record. E.g., Federal Aviation Administration, Washington, D.C., 52 FLRA No. 51 (1996) (FAA) (Member Armendariz dissenting); United States Border Patrol, Tucson Sector, Tucson, Arizona, 48 FLRA 391, 394 (1993). In so doing, we do not intend to preclude a judge to whom the case may be submitted from making other findings that are deemed necessary or from resolving this case on any appropriate ground.

7. Unlike FAA, 52 FLRA No. 51, where he found that the stipulated record was sufficient to decide the case, Member Armendariz agrees that the record in this case lacks evidence necessary to resolve the issues presented. For example, there is no evidence bearing on whether the Union's conduct before the Panel constituted bad faith bargaining. Consequently, Member Armendariz concurs in remanding this case to the Regional Director.