American Federation of Government Employees, Local 3369 and Social Security Administration, Cypress Hills District Office (Authority decision, March 31, 1988)

Final FLRA decision. The Authority finds the union's proposal for working smoke intervals negotiable and orders bargaining upon request or as otherwise agreed by the parties. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

AFGE Local 3369 proposed intervals when employees could smoke in designated areas while continuing work at an SSA district office. The agency alleged that the proposal interfered with management rights and conflicted with a national memorandum, but it filed no supporting statement with the Authority. The Authority found no showing that the employees could not perform their work in the designated area. It also read the proposal to preserve the agency's ability to deny an interval when work needs required. It ordered bargaining upon request and left the memorandum dispute for another forum.

Decision snapshot

• Authority: 5 U.S.C. § 7106(a)(2) and (b)(1).
• Outcome: Working smoke interval proposal negotiable; bargaining ordered upon request.
• Key point: The proposal preserved management's ability to deny intervals when work needs required.

Full text (FLRA public release)

[ v31 p1110 ]

31:1110(91)NG

The decision of the Authority follows:

31 FLRA NO. 91
31 FLRA 1110 (1988)

31 MAR 1988

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL 3369

Union

and

SOCIAL SECURITY ADMINISTRATION
CYPRESS HILLS DISTRICT OFFICE

Agency

Case No. 0-NG-1486

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 a working smoke break. For the following reasons, we find the proposal to be negotiable.

II. Proposal

Employees shall be allowed, consistent with U.S.C. 7106 A1-2, working smoke intervals between the earliest break and lunch, lunch and the latest break, and dismissal during the regular tour.

III. Positions of the Parties

The Agency did not file a statement of position in this case. In a written statement to the Union, the Agency, without supporting arguments, declared the proposal nonnegotiable for the following reasons:

(1) It interferes with management rights to assign work and direct employees under section 7106(a)(2)(A) and (B) of the Statute;

(2) It interferes with management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute; and

(3) The April 27, 1987 Memorandum of Understanding (MOU) between the Social Security Administration (SSA) and the American Federation of Government Employees General Committee (AFGE) limited such local negotiations to bargaining solely over the configuration of designated smoking areas.

The Union contends that the proposal provides a Working Smoke Interval for employees who smoke. The Union defines the Working Smoking 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 alleges that the work being done requires no special or particular location for its completion. Further, the Union contends that under this proposal, management retains the right to allow or disapprove this action by employees.

IV. Analysis and Conclusion

The issue in this case is whether unit employees may leave their designated work areas in order to smoke in the designated smoking areas at times other than employees' lunch periods or rest periods.

The Agency contends that the proposal interferes with its right to assign work and direct employees within the meaning of section 7106(a)(2)(A) and (B) of the Statute and its right to determine the methods and means of performing operations within the meaning of section 7106(b)(1) of the Statute. We disagree.

The Union states that this proposal would permit employees who "wish, desire, or have need to smoke at times other than their lunch or contractual rest periods to do so in the designated smoking area while bringing work to the area in order to maximize Government time." We have held that the location at which employees perform the normal duties of their jobs is negotiable unless a relationship exists between the job location and the job duties. See International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, 115-16 (1987) (Provision 4) and American Federation of Government Employees, AFL - CIO, and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 5 FLRA 83 (1981).

The Agency has made no showing that the Proposal in any manner is inconsistent with its right to assign and direct employees and to determine the methods and means of operating. We note that the Agency did not file a statement of position and provided no supporting arguments in its allegation of negotiability. Furthermore, the Agency has not shown that the nature of the employees' jobs would prevent them from working in the designated smoking area.

Further, even if the employees did not take any work with them to the designated smoking area or if they did not perform any work while taking a smoking break, this proposal would be negotiable. The Proposal states that smoking breaks shall be allowed, "consistent with U.S.C 7106 A1-2." We assume the Proposal is referring to section 7106(a)(1) and (2) of the Statute which sets forth management's rights, including the right to assign work and direct employees. Therefore, the granting or denial of breaks for smoking would be subject to work needs. The Union states that the intent of the Proposal is to give the Agency the right to turn down an employee's request for a smoking break if necessary. The Authority has held that whether to grant "breaks" is a matter which is subject to negotiation when, as here, the relevant proposal would not require the Agency to grant an employee's request where mission needs dictated otherwise. See American Federation of Government Employees, Local 3342, AFL - CIO and Department of Health and Human Services, Social Security Administration, 19 FLRA 1100 (1985) and cases cited therein. Accordingly, the proposal does not interfere with the Agency's rights under section 7106(a)(2)(A) and (B) and section 7106(b)(1) of the Statute.

The Agency argues that the April 27, 1987 Memorandum of Understanding executed by the Social Security Administration and the American Federation of Government Employees limited negotiations to bargaining solely over the configuration of designated smoking areas. The Agency has not presented any evidence to substantiate its allegation or divulge the nature of the negotiation of the Memorandum of Understanding. Further, the Agency has not provided us with a copy of the Memorandum of Understanding. Consequently, we have no basis to determine what bearing, if any, the Memorandum of Understanding would have on the Proposal. Therefore, based on the facts before us whether the Memorandum of Understanding limits negotiations on the Proposal is not appropriately resolved in this negotiability appeal. Rather, issues regarding the meaning and applicability of the Memorandum of Understanding should be resolved in another forum, such as an unfair labor practice proceeding.

Therefore, based on the above analysis, we find the union's proposal to be negotiable.

V. Order

The Agency must bargain, upon request or as otherwise agreed to by the parties, over the proposal. 1

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

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

Footnote 1 In finding this proposal to be negotiable, we make no judgment as to its merits.