31:1114(92)NG - AFGE Local 3369 and SSA, Midtown District Office -- 1988 FLRAdec NG

31 FLRA NO. 92

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3369

                  Union

        and

SOCIAL SECURITY ADMINISTRATION
MIDTOWN DISTRICT OFFICE

                  Agency

                                   Case No. 0-NG-1498

     DECISION AND ORDER ON NEGOTIABILITY ISSUE

     I. Statement of the Case

     This case is before the Authority because of 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 would allow
employees to have "Working Smoke Intervals" during the day. For
the following reasons, we find that the conditions for review of
negotiability issues have not been met and dismiss the Union's
petition for review.

     II. Proposal

     We seek to have management return to the past practice-that
     is, prior to the new Federal regulations and the MOU on smoking
     all employees were free to smoke, if they so chose, at any time
     during the workday. The new Federal regulations and MOU on
     smoking have, thusly, not changed anything other than the
     location in which employees may now smoke.

     All employees shall be allowed to smoke in designated
     smoking areas outside of lunch and regular break periods, for
     reasonable period(s) of time.

     Employees shall be allowed 'Working Smoke Intervals' between
     early break and lunch, lunch and late break, late break and
     dismissals during a regular work tour.

     III. Positions of the Parties

     The Agency's statement of position was untimely filed and
has not been considered in this case. In a written statement to
the Union, the Agency stated that the issue of smoking breaks or
intervals was "compromised" at the national level and, therefore,
it did not have any obligation to bargain at the local level on
the issue. The Agency did not declare the Proposal to be
nonnegotiable.

     The Union contends that the proposal provides a Working
Smoke Interval for employees who smoke. The Union defines the
Working Smoke Interval as "an interval in the normal workday,
analogous to using the restroom(s) or getting a drink of water,
wherein an employee who wishes to smoke may do so in a designated
smoking area while continuing his/her work." In this light, the
Union states that it wishes to return to the past practice which
was in effect prior to the new Federal Regulations and the
Memorandum of Understanding (MOU) between the Social Security
Administration (SSA) and the American Federation of Government
Employees General Committee (AFGE) that all employees were free
to smoke during the workday. It contends that the only change
made by the Federal Regulation and MOU is where employees may
smoke. Further, the Union contends that the proposal assumes and
maintains management's right to allow or disallow the smoke time
periods, although the expectation is that management would
normally allow and make all attempts to meet the needs of the
employees concerned.

     IV. Analysis and Conclusion

     The Agency contends that it has no duty to bargain on the
Proposal because the issue of smoking breaks or intervals was
"compromised" at the national level. The Agency does not argue
that this Proposal is inconsistent with law, rule or
regulation.

     Under section 2424.1 of our Regulations, we will consider a
petition for review of a negotiability issue only where the
parties are in dispute as to whether a proposal is inconsistent
with law, rule, or regulation. In this case, as noted above,
there is no issue before us as to whether the Proposal is
inconsistent with law, rule or regulation. 
In this circumstance, the conditions governing review of
negotiability issues, as described in section 2424.1 of our Rules
and Regulations, have not been met.

     Moreover, whether the issue of smoking breaks or intervals
was "compromised" at the national level, thus relieving the
Agency of its obligation to bargain at the local level should be
resolved in other appropriate proceedings, such as the parties'
negotiated grievance procedures as set forth in the Memorandum of
Understanding or the unfair labor practice procedures under
section 7118 of the Statute.

     Therefore, we will dismiss the Union's petition for review,
without prejudice to the Union's right to file a negotiability
appeal if the conditions governing review of negotiability issues
are met and if the Union chooses to file such an appeal. See
American Federation of Government Employees, Local 12, AFL - CIO
and Department of Labor, 26 FLRA  768 (1987).

     V. Order

     The Union's petition for review is dismissed without
prejudice to the Union's right to file a negotiability appeal if
the conditions governing review of negotiability issues are met
and if the Union chooses to file such an appeal.

     Issued, Washington, D.C., March 31, 1988

                         Jerry L. Calhoun, Chairman

                         Jean McKee, Member

                         FEDERAL LABOR RELATIONS AUTHORITY