American Federation of Government Employees, Local 2324 and Department of the Army, Headquarters, 1st Infantry Division, Fort Riley, Kansas (Authority decision, May 14, 1987)

Final FLRA decision. The Authority orders the Army to bargain over a union proposal permitting smoking in military vehicles. An aggrieved person may seek judicial review of a final Authority order by petitioning an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

The union proposed an exception to the Army’s smoking policy for military vehicles. The Army argued that smoking in those vehicles could expose nonsmokers, including people outside the bargaining unit, and that its health policy barred bargaining. Applying an earlier decision on the same regulations, the Authority found that the Army had not shown a compelling need for the particular restrictions on smoking locations that would bar negotiations. It ordered bargaining without judging whether the proposal was desirable.

Decision snapshot

• Authority: Negotiability under 5 U.S.C. § 7105(a)(2)(E) and claimed compelling need under § 7117(a)(2).
• Outcome: Army ordered to bargain on the vehicle smoking proposal.
• Key point: The Army did not establish that its smoking policy created a compelling-need bar to bargaining over this proposal.

Full text (FLRA public release)

[ v27 p33 ]

27:0033(7)NG

The decision of the Authority follows:

27 FLRA No. 7

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2324, AFL-CIO
Union

and

DEPARTMENT OF THE ARMY
HEADQUARTERS, 1ST INFANTRY DIVISION
FORT RILEY, KANSAS
Agency

Case No. 0-NG-1334

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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of a proposal which would permit smoking in military vehicles as an exception to the Department of the Army's "Policy on Controlling Smoking." We find the proposal to be negotiable.

II. Proposal

8. Smoking shall be permitted in military vehicles.

III. Positions of the Parties

The Agency contends that the proposal would allow bargaining unit members to smoke in military vehicles where space and ventilation are inadequate to provide nonsmokers a healthful environment. It would have an adverse impact on such nonbargaining unit members as military personnel, their dependents, managers, supervisors, and visitors to the base who could be exposed to smokers in such public conveyances as buses and shuttle vans. The Agency also contends that the proposal is inconsistent with the requirements of the Department of Defense's Directive 1010.10, "Health Promotion," March 11, 1986, and the implementing Department of the Army Policy on Controlling Smoking, June 6, 1986. The Agency claims that a compelling need exists under section 2424.11(a) of the Authority's Rules and Regulations for these regulations because the policy of making nonsmoking the norm for Department of the Army occupied buildings and work areas is essential to the functioning of the Department of the Army in an effective and efficient manner.

IV. Analysis and Conclusions

We recently decided in National Association of Government Employees, Local R14-32 and Department of the Army, Fort Leonard Wood, Missouri, 26 FLRA No. 73 (1987), that four proposals concerning the implementation of an agency smoking policy were negotiable. Proposal 2 in that case, like the proposal in this case, effectively provided that smoking would be permitted in military vehicles. In Fort Leonard Wood, the agency argued that the proposals were nonnegotiable because they were determinative of the working conditions of nonbargaining unit employees. In rejecting this claim we found that the proposals primarily affected nonsmokers rather than nonunit employees and therefore the conditions of employment of nonunit employees. In Fort Leonard Wood, the agency also argued that the four proposals were inconsistent with provisions of agency regulations for which a compelling need was claimed to exist under section 2424.11(a) of the Authority's Rules and Regulations. The agency regulations raised as a bar to negotiations in that case are the same regulations raised for that purpose in this case, namely the Army Policy on Controlling Smoking, June 6, 1986 and DOD Directive 1010.10. As to this claim, we found in that case that the Agency had demonstrated generally that smoking can have deleterious effects on employee health and that the costs associated with those effects in terms of workforce effectiveness and productivity can be significant. However, we determined that the agency had not shown that without the particular regulatory restrictions as to the areas in which smoking will be permitted it would be unable to achieve its objectives of greater employee health, enhanced productivity, and reduced operational costs. We therefore concluded that there was no merit in the Agency's contention that a compelling need exists for its policy under section 2424.11(a) of the Authority's regulations so as to bar negotiations on the proposal.

The Agency in this case raises the same arguments that the agency raised in Fort Leonard Wood. Thus, for the reasons more fully explained in Fort Leonard Wood, we reject these arguments in this case. Consequently, the proposal in this case is within the duty to bargain.

V. Order

The Agency must bargain, upon request or as otherwise agreed to by the parties, over the proposal. /*/

Issued, Washington, D.C., May 14, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee
FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

(*) In deciding that the proposal is within the duty to bargain, we make no judgment as to its merits.