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

Final FLRA decision. The Authority dismisses the union's negotiability petition without prejudice because the agency had not alleged that the proposal conflicted with law or regulation. 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 working intervals when employees at an SSA district office could smoke in designated areas. The agency responded that the issue had been resolved at the national level and that it had no local duty to bargain, but it did not declare the proposal nonnegotiable under law or regulation. The Authority found that this threshold condition for a negotiability appeal was absent. It dismissed the petition without prejudice and left the dispute over any national agreement to other proceedings.

Decision snapshot

• Authority: 5 U.S.C. § 7105(a)(2)(E); 5 C.F.R. § 2424.1.
• Outcome: Petition dismissed without prejudice.
• Key point: A dispute over whether a national agreement ends a local bargaining obligation did not itself present a negotiability issue for this petition.

Full text (FLRA public release)

[ v31 p1114 ]
31:1114(92)NG

The decision of the Authority follows:

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