National Treasury Employees Union and Department of the Treasury, U.S. Customs Service (Authority decision, October 17, 1988)

Final FLRA decision. The Authority finds both proposals negotiable and orders the agency to bargain on request or as otherwise agreed by the parties. An aggrieved person may seek judicial review of this final Authority order within 60 days after issuance under 5 U.S.C. § 7123(a); filing does not stay the order unless the court orders a stay under § 7123(c).

Plain-English summary

NTEU proposed that the U.S. Customs Service negotiate which areas would allow smoking and give the union notice and a chance to bargain before facility changes implementing a federal smoking policy. Customs argued the proposals were too open-ended and might lead to later proposals that conflicted with regulations or management rights. The Authority held that the two proposals required bargaining only over matters otherwise within the duty to bargain. They did not require Customs to accept an unlawful future proposal or waive its right to challenge one. The Authority found both proposals negotiable and ordered bargaining, without judging their merits.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E).
• Outcome: Both proposals found negotiable; bargaining ordered on request or as otherwise agreed.
• Key point: A duty to bargain over smoking policy implementation does not require an agency to accept a future unlawful proposal.

Full text (FLRA public release)

[ v33 p183 ]
33:0183(20)NG

The decision of the Authority follows:

33 FLRA No. 20

FEDERAL LABOR RELATIONS
AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES
UNION

and

DEPARTMENT OF THE
TREASURY

U.S. CUSTOMS
SERVICE

0-NG-1547

DECISION AND ORDER ON NEGOTIABILITY
ISSUES

October 17, 1988

Before Chairman Calhoun and Member
McKee.

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). It concerns the negotiability of two proposals. The proposals address the Agency's proposed smoking policy. For the reasons stated below, we find both proposals to be negotiable.

II. Proposals 1 and 2

A. Proposal 1

The Employer agrees to negotiate over the specific areas to be designated as smoking or non-smoking.

B. Proposal 2

Should the Employer decide to make changes in the facilities to implement the GSA policy, the Employer will notify the Union prior to implementing any change and provide the Union with an opportunity to bargain.

III. Positions of the Parties

The Department of the Treasury, U.S. Customs Service (the Agency) asserts that the National Treasury Employees Union's (the Union) appeal should be dismissed because the proposals are not sufficiently specific and delimited in form and content so as to permit a negotiability determination. According to the Agency, a mere request to negotiate over the Agency's smoking policy "subsumes an infinite number of potential proposals, each particular proposal having specific purposes and consequences which when measured against applicable law, rules and regulations would be determinative of whether a given proposal is within the scope of the duty to bargain." Statement of Position at 3-4.

The Agency argues that particular proposals could be nonnegotiable either because they are inconsistent with General Services Administration (GSA) smoking regulations and, therefore, violate section 7117(a)(2) of the Statute or because they infringe on management rights under section 7106(a)(1) and (b) of the Statute. The Agency observes that Proposal 2 could be revised so as to be negotiable if it stated "'the employer agrees to enter into negotiations with [the Union] over the areas to be designated as smoking or non-smoking. In so negotiating, the employer retains all rights under the Labor Management Relations Statute to declare a proposal non-negotiable as either a reserved management right or a permissive subject of bargaining.'" Statement of Position at 2-3.

The Union denies that the disputed proposals would require the Agency to waive its right to declare specific proposals, negotiated under the terms of the disputed proposals, to be nonnegotiable. The Union asserts that the purpose of the two proposals is to obligate the Agency to bargain locally over implementation of GSA smoking regulations. With specific reference to Proposal 1, the Union notes that bargaining over the designation of specific smoking and non-smoking areas is authorized by both governing regulations and applicable Authority precedent. The Union states that Proposal 2 creates no obligation to expend Agency funds for structural changes to accommodate the preferences of employees. According to the Union, Proposal 2 only requires the Agency to negotiate with the Union over how best to accomplish stated objectives within the funds allocated by the Agency for alterations.

IV. Analysis and Conclusions

Proposals concerning implementation of an agency's smoking policy involve conditions of employment of bargaining unit employees. See National Treasury Employees Union and Internal Revenue Service, Los Angeles District, 32 FLRA 182, 187-89 (1988) petition for review filed sub nom. Internal Revenue Service, Los Angeles District v. FLRA, No. 88-1550 (D.C. Cir. July 29, 1988); Department of Health and Human Services, Public Health Service, Health Resources and Services Administration, Oklahoma City Area, Indian Health Service, Oklahoma City, Oklahoma, 31 FLRA 498, 505-08 (1988), petition for review filed sub nom. Department of Health and Human Services, Indian Health Service, Oklahoma City, Oklahoma v. FLRA, No. 88-1304 (D.C. Cir. Apr. 21, 1988); National Treasury Employees Union and Internal Revenue Service, Indianapolis District, 30 FLRA 32 (1987); American Federation of Government Employees, Local 2324, AFL-CIO and Department of the Army, Headquarters, 1st Infantry Division, Fort Riley, Kansas, 27 FLRA 33 (1987); and National Association of Government Employees, Local R14-32 and Department of the Army, Fort Leonard Wood, Missouri, 26 FLRA 593, 595-96 (1987). Hence, proposals addressing the implementation of an agency's smoking policy are negotiable, unless they otherwise violate applicable law, rules or regulations. Compare American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1262-63 (1988) (Provision 15) (provision barring nonsmokers from being required to enter smoking areas where smoking is occurring or second hand smoke is present held to be nonnegotiable because it interfered with management's right to assign work under section 7106(a)(2)(B)).

In this case, the Agency argues that the proposals do not set out any specifics. Consequently, in its view, any subsequent proposals negotiated under the authority of these two proposals could be nonnegotiable.

As noted by the Union, the proposals in this case only require that the Agency negotiate over its smoking policy. The proposals contain no requirement that management act in any manner inconsistent with law or regulation. The Agency head would not be prevented from declaring a proposal to be nonnegotiable, should any specific proposal, initiated under the bargaining obligation set out in these proposals, present a negotiability question. In short, the proposals seek no waiver of any Statutory management rights, but only obligate management to bargain over matters that are otherwise negotiable. Accordingly, the proposals are within the duty to bargain. See International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 351-52 (1988) (Provision 1, first sentence).

V. Order

The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning Proposals 1 and 2.(*)

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

*/ In finding these proposals to be negotiable, we make no judgment as to their merits.