Social Security Administration, Region VII, Kansas City, Missouri and American Federation of Government Employees, Local 1336 (Authority decision, June 30, 1999)

Read the official release (flra.gov)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in an unfair-labor-practice proceeding. 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). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

SSA supported banning smoking in a shared federal-building cafeteria and refused the union’s request to bargain. The Authority upheld the unfair-labor-practice finding and ordered bargaining on request and a 60-day notice. The national agreement’s smoking ban for SSA facilities did not encompass the GSA-controlled cafeteria. A separate memorandum required mid-term bargaining unless an agreement explicitly and comprehensively addressed the matter, defeating SSA’s covered-by and waiver defenses. The Authority clarified that contract-authorization and covered-by defenses may both be raised in the same case. The attached ALJ notice names Local 1923, while the Authority’s operative notice and the case identify Local 1336; both official texts are preserved.

Decision snapshot

• Authority: Unfair-labor-practice bargaining duties and the parties’ national agreement and memorandum.
• Outcome: Violation upheld; bargaining on request and a 60-day notice ordered.
• Key point: The contract’s SSA-facility smoking ban did not foreclose bargaining over a GSA-controlled shared cafeteria.

Full text (FLRA public release)

[ v55 p536 ]

55 FLRA No. 95

SOCIAL SECURITY ADMINISTRATION

REGION VII, KANSAS CITY, MISSOURI

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1336

(Charging Party/Union)

DE-CA-70818

_____

DECISION AND ORDER

June 30, 1999

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge. The General Counsel filed an opposition to the Respondent's exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to provide the Union with advance notice of the Respondent's support for elimination of smoking in the cafeteria of the building in which the Respondent is a tenant and by refusing to bargain over the elimination of smoking in the cafeteria. The Judge determined that the Respondent violated the Statute, as alleged.

On consideration of the Judge's decision, we find that the Respondent violated section 7116(a)(1) and (5) and adopt the Judge's findings, conclusions, and recommended order to the extent consistent with this decision.

II. Background and Judge's Decision

The Respondent is located in the Richard Bolling Federal Center (Bolling Center) along with a number of other Federal agencies. At all relevant times, the Bolling Center had a board of directors that decided issues regarding the building. The board was made up of a representative from each agency tenant. The General Services Administration (GSA) administers the Bolling Center. GSA's policy on smoking in the building cafeteria was that it would eliminate smoking when all the tenant agencies approved. In May 1997, the board unanimously approved the elimination of smoking in the building cafeteria. Among those approving the change was the Respondent's representative. However, the board approval was contingent on each agency notifying the union representing its employees and discharging its bargaining obligations, if any.

The Respondent notified the Union of the board approval, but refused the Union's request to bargain over the substance, impact, and implementation of the smoking ban in the building cafeteria. The Union filed an unfair labor practice charge and the General Counsel issued a complaint alleging that the Respondent violated section 7116(a)(1) and (5) by failing to provide the Union with advance notice of the Respondent's support for elimination of smoking in the building cafeteria and by refusing to bargain over that elimination.

Before the Judge, the Respondent claimed that it had not violated the Statute because the subject of smoking was covered by the parties' 1996 national agreement. The Respondent asserted that the subject of smoking was covered by Article 9, Section 17, which provides: "In keeping with the parties' concern for the health, safety, and well being of all SSA [Social Security Administration] employees, there shall be `no smoking' in any SSA facility." Judge's decision at 5 (quoting agreement). The Respondent maintained that the 1996 national agreement expressly encompassed the matter of smoking in multi-tenant buildings. The Respondent further argued that the subject of smoking was inseparably bound up with the other health and safety provisions of Article 9 and that the bargaining history showed that the matter of smoking in multi-tenant buildings had already been negotiated. Alternatively, the Respondent argued that the bargaining history in this case showed that the Union had waived its bargaining rights over smoking.

The Judge determined that this case was not controlled by the framework established in U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA, Baltimore) for resolving "covered-by" defenses, as argued by the Respondent. Instead, he found that this case was controlled by the framework set forth in Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), which prescribes the approach when a respondent claims as a defense to an unfair labor practice charge that a specific provision of the parties' collective bargaining agreement allowed the actions alleged to constitute the unfair labor practice. In the Judge's view, as in IRS, the Respondent was arguing that the specific provisions of Article 9, Section 17 [ v55 p537 ] allowed its actions that had been alleged to violate the Statute. In addition, the Judge noted that although U.S. Department of the Navy, Marine Corps, Washington, D.C., 48 FLRA 278, 281-82 (1993) (Marine Corps) suggests that the Authority would entertain defenses based on both IRS and SSA, Baltimore, the Authority has not specifically ruled that a Respondent may rely on both defenses in the same case.

In view of the use of the term "SSA facility" in Section 17, the Judge determined that the dispositive issue was whether the building cafeteria was an SSA facility within the meaning of Section 17. He found that it was undisputed that the cafeteria was under GSA control. Given GSA's control and in the absence of any persuasive evidence that shared spaces such as the building cafeteria were encompassed within the term "SSA facility," the Judge ruled that the cafeteria was not an SSA facility within the meaning of Section 17. He found unpersuasive the Respondent's past practice evidence on multi-tenant buildings and bargaining history evidence. In the Judge's view, the bargaining history evidence was too remote and the past practice evidence was inconclusive. Accordingly, he concluded that the Respondent had not established a defense to its bargaining obligations under the standards of IRS.

Alternatively, he ruled that if SSA, Baltimore were the proper analysis to apply, he would conclude that the Respondent had not established a "covered-by" defense. In reaching this alternative conclusion, he relied on a memorandum of understanding (the Barstow MOU) with respect to the application of Article 4 of the 1996 national agreement pertaining to mid-term bargaining. The MOU provided:

The Parties agree that in the administration of Article 4 of the National Agreement, SSA will continue its current practice of giving notice to AFGE concerning changes in conditions of employment without regard to the Barstow decision.

Unless it is clear that a matter at issue is set forth explicitly and comprehensively in the National Agreement or existing MOU, the subject is appropriate for mid-term bargaining.

In Social Security Administration, 55 FLRA 374 (1999), the Judge had ruled that under the Barstow MOU, a matter was not foreclosed from bargaining unless the subject was set forth explicitly and comprehensively in an agreement.

In addition, the Judge concluded that the Respondent had failed to establish that the Union had waived its right to bargain over smoking in the building cafeteria. He found considerable doubt as to whether the parties' negotiations even addressed smoking policy in spaces not controlled by SSA or Health and Human Services (HHS) (during the period when SSA was still a part of HHS).

Accordingly, the Judge ruled that the Respondent had violated the Statute, as alleged. The Judge granted the requested remedy that the Respondent be required, on request, to negotiate with the Union on the actions it will take to remedy its unilateral support of the smoking ban in the building cafeteria, including the possibility of changing its vote and requesting that the ban be rescinded.

III. Positions of the Parties

A. Respondent's Exceptions

The Respondent contends that the Judge made four errors.

First, the Respondent contends that the Judge erred in failing to fully consider its "covered-by" arguments. The Respondent asserts that the Judge failed to explain why IRS precluded full consideration of its "covered-by" defense.

Second, the Respondent contends that the Judge erred in finding that the matter of smoking in the building cafeteria was not covered by the parties' 1996 national agreement. The Respondent argues that the evidence adduced at the hearing fully supports a determination that the issue of smoking was covered by the 1996 national agreement under the analytical framework of SSA, Baltimore. In addition, the Respondent maintains that the Barstow MOU did not authorize bargaining on the smoking ban in the Bolling Center cafeteria because the matter of smoking is set forth explicitly and comprehensively in the 1996 national agreement.

Third, the Respondent contends that the Judge erred in failing to find that Article 9, Section 17 of the parties' agreement supported its actions. The Respondent maintains that under IRS, the intent of the parties is to have controlling weight in the interpretation of the collective bargaining agreement. The Respondent asserts that the Judge ignored the parties' intent for a smoke-free workplace, which is evident from the applicable agreement provisions on smoking and bargaining history beginning in 1988. The Respondent also maintains that the implementation of a no-smoking policy in a multi-tenant building in New York demonstrates a past practice and is a clear example of what the contract language meant to the parties in multi-tenant situations. [ v55 p538 ]

Fourth, the Respondent contends that the Judge erred in failing to find that the Union waived its right to bargain over smoking in the building cafeteria. The Respondent claims that the Union clearly yielded its interest in this area beginning with the 1990 national agreement by agreeing to no smoking provisions in exchange for a number of employee benefits.

B. General Counsel's Opposition

The General Counsel contends that, contrary to the claims of the Respondent, the Judge did address the Respondent's "covered-by" defense. The General Counsel further argues that if the Authority were to decide that it is the proper analysis to apply, it is the position of the General Counsel that the Judge correctly rejected the defense. In addition, the General Counsel contends that the Judge properly applied IRS and correctly determined that the Respondent had failed to establish that Section 17 was mutually intended by the parties to be a comprehensive program to eliminate all smoking. Finally, the General Counsel contends that the Judge correctly determined that the Union had not waived its right to bargain over smoking in the building cafeteria.

IV. Analysis and Conclusions

A. Analytical Frameworks Addressed by the Judge

The Judge identified and discussed two analytical frameworks used by the Authority to resolve unfair labor practice allegations. In SSA, Baltimore, the Authority established a three-prong test for determining whether a particular change in conditions of employment is "covered by" an existing collective bargaining agreement between the parties. This assertion is commonly referred to as a "covered-by" defense. [n1] In IRS, the Authority set forth the analytical framework to be used when a respondent claims as a defense to an unfair labor practice charge that a specific provision of the parties' collective bargaining agreement allowed the actions alleged to constitute the unfair labor practice.

Both defenses are based on the collective bargaining agreements of the parties. "Covered-by" defenses apply only to statutory obligation-to-bargain cases and require that the Authority determine whether the subject matter about which the union seeks to bargain has already been resolved by previous bargaining. See Social Security Administration, 55 FLRA at 377. In determining whether the subject matter proposed to be bargained is covered by a collective bargaining agreement, the Authority does not determine whether any of the terms of the agreement have been violated.

Although the IRS framework applies to statutory obligation-to-bargain cases when a respondent relies on a contract provision specifically concerning bargaining (such as a reopener or zipper clause), defenses under IRS also apply to other unfair labor practice allegations. See IRS, 47 FLRA at 1092 (union alleged that respondent violated section 7116(a)(1) and (5) by refusing to recognize the union's president as a steward-at-large). In addition, in determining whether the agreement authorized the respondent's actions, the Authority must not only determine whether the agreement provision covers the action alleged to constitute an unfair labor practice, but also whether the provision permitted the respondent's alleged unlawful action. See IRS, 47 FLRA at 1103.

As reflected by the discussion of these two frameworks and as this case demonstrates, both defenses could conceivably be raised in the same case. The Authority indicated as much in Marine Corps, cited by the Judge. See 48 FLRA at 281-82. To the extent that there is any confusion as to whether these defenses are mutually exclusive, we take this opportunity to specifically rule that they are not and that a respondent may rely on both defenses in the same case.

B. We Address Both the IRS and the Covered-by Frameworks in This Case

It appears that the Judge in this case determined that defenses under IRS and SSA, Baltimore are mutually exclusive and that the Respondent's defense was more appropriately considered under IRS. In the circumstances of this case, we find that the Respondent's defenses to the alleged statutory failure to bargain must be analyzed under both frameworks. [ v55 p539 ]

1. The Judge Correctly Concluded under IRS that the Parties' Agreement Did not Allow the Respondent's Refusal to Bargain [n2]

In accordance with IRS, in cases where a judge's interpretation of the meaning of the parties' agreement is challenged on exceptions, the Authority determines whether the judge's interpretation is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and federal courts. 47 FLRA at 1110. Thus, the question in this case under the IRS framework is whether the Judge's interpretation of Article 9, Section 17 of the parties' 1996 national agreement is supported by the record and by the standards and principles of interpreting collective bargaining agreements applied by arbitrators and the federal courts. We conclude that it is.

The plain wording of Section 17 specifically provides that there will be no smoking in any SSA facility. The Judge found that it was undisputed that the cafeteria was under the control of GSA. In view of GSA's control and in the absence of any persuasive evidence that shared spaces such as the building cafeteria were encompassed within the term "SSA facility," the Judge ruled that the cafeteria was not an SSA facility within the meaning of Section 17.

In disputing the Judge's interpretation and application of Section 17, the Respondent argues that the Judge ignored the parties' intent for a smoke-free workplace. The Respondent also claims that the implementation of a no-smoking policy in a multi-tenant building in New York demonstrates a past practice and is a clear example of what the contract language meant to the parties in multi-tenant situations.

On the record presented and consistent with the standards and principles applied by arbitrators and the federal courts, see, e.g., Social Security Administration, 55 FLRA at 377, we conclude that the Judge correctly refused to extend the smoking ban for SSA facilities to the Bolling Center cafeteria. As did the Judge, we find the Respondent's bargaining history evidence too remote and its past practice claim inconclusive. Accordingly, we adopt the Judge's determination that under the standards of IRS, the Respondent's refusal to bargain was not allowed by Article 9, Section 17. [n3]

2. Respondent's "Covered-by" Defense

We find that the Respondent properly raised a "covered-by" defense. As we have now specifically held that the affirmative defenses under IRS and SSA, Baltimore are not mutually exclusive, we conclude that the Judge erred by finding that SSA, Baltimore did not apply. However, as explained below, we believe that the record is sufficient to resolve the Respondent's "covered-by" defense.

a. The Judge Properly Interpreted and Applied the Barstow MOU

As an alternative to his conclusion under IRS, the Judge ruled that if SSA, Baltimore were the proper analysis to apply, he would conclude that the Respondent had not established a "covered-by" defense under SSA, Baltimore. In reaching this alternative conclusion, the Judge relied on the parties' Barstow MOU, which he had interpreted and applied in Social Security Administration. In Social Security Administration, the Judge ruled on the basis of the clear language of, and bargaining history to, the Barstow MOU that a subject was not foreclosed from further bargaining unless the subject in dispute was set forth explicitly and comprehensively in an agreement.

In Social Security Administration, we agreed with the Judge's determination that under the Barstow MOU, the respondent had effectively waived its right to assert a "covered-by" defense under SSA, Baltimore to a statutory obligation to bargain except to the extent the matter is set forth explicitly and comprehensively in an agreement. 55 FLRA at 377. The parties in this case do not dispute the relevance of the MOU. Accordingly, for the reasons set forth in detail in Social Security Administration, we also agree with that interpretation in this case. Applying that interpretation, we find that the Barstow MOU is dispositive of the Respondent's "covered-by" defense to the charge that its refusal to bargain violated the Statute. Because we find the MOU dispositive in this case, we express no view on how we would have ruled in the absence of the MOU. [ v55 p540 ]

The question presented by the application of the Barstow MOU is whether the record supports a conclusion that the smoking policy in multi-tenant buildings is explicitly and comprehensively set forth in the 1996 national agreement. The Respondent does not argue, and it is not otherwise apparent, that the smoking policy with respect to multi-tenant buildings is explicitly addressed in the parties' 1996 national agreement. Article 9, Section 17, on which the Respondent primarily relies, expressly addresses only SSA facilities, and we have adopted the the Judge's determination that the building cafeteria was not an SSA facility within the meaning of Section 17. Moreover, the Judge had found that the Respondent failed to establish that the parties' negotiations even addressed smoking policy in spaces not controlled by SSA or HHS. Consequently, the record provides no basis for concluding that the smoking policy for multi-tenant buildings is somehow explicitly and comprehensively set forth in the 1996 national agreement. Accordingly, we find that on the basis of the Barstow MOU, bargaining on smoking policy in a multi-tenant building was not foreclosed by the 1996 national agreement, as asserted by the Respondent.

b. We Adopt the Judge's Conclusion that the Respondent Violated Section 7116(a)(1) and (5) of the Statute

Based on the foregoing, we adopt the Judge's conclusion that the Respondent violated the Statute. We view the Barstow MOU as also dispositive of the Respondent's argument that the Union waived its right to bargain over smoking in the Bolling Center cafeteria. In our view, the Respondent's waiver argument is nothing more than a reframing of its "covered-by" argument that the parties' bargaining history establishes that the parties' agreement covers the matter of smoking in a multi-tenant cafeteria. As the Barstow MOU required mid-term bargaining over any topic that is not set forth explicitly and comprehensively in any agreement, we find that the MOU forecloses this argument. In rejecting this argument, we do not suggest that all waiver arguments based on bargaining history are necessarily "covered-by" claims.

V. Order

Pursuant to section 2423.41(c) of the Authority's Regulations and section 7118 of the Statute, the Social Security Administration, Region VII, Kansas City, Missouri shall:

1. Cease and desist from:

(a) Unilaterally changing conditions of employment by supporting the banning of smoking in the cafeteria of the Bolling Center without first completing bargaining with the Union.

(b) In any like or related manner, interfering with, restraining, or coercing employees in the exercise of their rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) On request, bargain with the Union over its support for the banning of smoking in the cafeteria of the Bolling Center.

(b) Post at its facilities at the Bolling Center copies of the attached notice on forms to be furnished by the Authority. On receipt of such forms, they shall be signed by the Regional Commissioner and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(c) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director of the Denver Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this order, as to what steps have been taken to comply. [ v55 p541 ]

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Social Security Administration, Region VII, Kansas City, Missouri, violated the Federal Service Labor-Management Relations Statute (the Statute) and has ordered us to post and abide by this Notice.

We notify bargaining unit employees that:

WE WILL NOT fail and refuse to bargain with the American Federation of Government Employees, Local 1336 (the Union), the exclusive representative, concerning proposed changes in the working conditions of bargaining-unit employees represented by the Union, including proposals to prohibit smoking in the cafeteria of the Richard Bolling Federal Center (Bolling Center) in Kansas City, Missouri.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights assured by the Statute.

WE WILL, on request by the Union, bargain to the full extent of our discretion concerning actions to be taken by the Social Security Administration to support a rescission of the ban on smoking by our employees in the cafeteria of the Bolling Center and/or to reduce the impact of that ban on bargaining-unit employees.

____

(Activity)

Dated:___ By: ___

(Signature) (Title)

This Notice must be posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, and whose telephone number is: (303) 844-5224.

File 1: Authority's Decision in 55 FLRA No.
95

File 2: ALJ's Decision

Footnote # 1 for
55 FLRA No. 95

• Authority's Decision

In this case, the Judge and the parties refer to the SSA, Baltimore framework as a "contained in/covered by" defense, see, e.g., Exceptions at 3, with the issues of "contained in" and "covered by" resolved under separate prongs of the framework. To dispel any confusion about the application of this analytical framework, we reiterate our view that the approach we use to resolve "covered
-by" defenses is a unified approach, in which we sequentially analyze the three prongs, as necessary, to determine whether the defense can be sustained. As we stated in Department of the Treasury, United States Customs Service, El Paso, Texas, 55 FLRA 43, 46-47 (1998), under the first prong, the Authority looks to the express language of the agreement to determine whether it reasonably encompasses the subject in dispute. Under the second prong, the Authority looks to whether the subject in dispute is inseparably bound up with a subject expressly covered by the agreement. If bargaining is not foreclosed under either of these prongs, under the third prong, the Authority examines the parties' intent.

Footnote # 2 for
55 FLRA No. 95

• Authority's Decision

Member Cabaniss would not address the IRS defense because it was not raised by the Respondent.

Footnote # 3 for
55 FLRA No. 95

• Authority's Decision

A defense to an unfair labor practice complaint pertaining to the parties' collective bargaining agreement is subject to waiver. See Social Security Administration, 55 FLRA at 377. In this case, we address the Judge's determination under IRS, because the Respondent has excepted to it, and the General Counsel has not objected to the Judge's resolution of the complaint on the basis of IRS. It is well settled that the Authority may address questions that it "finds relevant and necessary in any case before it." U.S. Department of Justice, 52 FLRA 1093, 1098 (1997). However, we note that because the defense under IRS was not raised by the Respondent, the complaint should not have been resolved on that basis.

[ v55 p541 ]

Office of Administrative Law Judges

SOCIAL SECURITY ADMINISTRATION

REGION VII, KANSAS CITY, MISSOURI

Respondent

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL 1336

Charging Party

Case No. DE-CA-70818

Bruce E. Conant, Esquire

For the General Counsel

Wilson Schuerholz

For the Respondent

Before: JESSE ETELSON

Administrative Law Judge

DECISION

An unfair labor practice complaint issued by the Regional Director for the Denver Region of the Federal Labor Relations Authority (the Authority) alleges that Respondent (SSA) violated sections 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute). The nature of the alleged violation is that SSA supported the elimination of smoking in the cafeteria of a building in which SSA is a tenant, without providing the Charging Party (the Union), the agent of the exclusive representative of a nationwide unit of SSA employees, with advance written notice of such action, and that SSA refused the Union's request to negotiate over the cessation of smoking in the cafeteria. SSA defends its action by asserting that it had no duty to bargain about this matter because the parties' collective bargaining agreement "covers" it and, in the alternative, because the Union clearly and unmistakably waived its right to bargain over this subject.

A hearing on the complaint was held on June 10, 1998, in Kansas City, Missouri. Counsel for the General Counsel and for Respondent filed post-hearing briefs.

Findings of Fact

A. Events Leading to Unfair Labor Practice Charge

SSA houses its Mid-America Program Service Center in the Richard Bolling Federal Center, an 18-story building in downtown Kansas City, Missouri. SSA is one of a number of Federal agency tenants of the Bolling Center, occupying several of its floors [ v55 p542 ] and employing approximately 1500 employees represented by the Union, making SSA the Bolling Center tenant with the largest work force. A substantial number of the bargaining unit employees, estimated variously at between 25% to 50%, are smokers. While the work areas and most other areas accessible to the bargaining unit employees had been designated as "no smoking" areas since 1987, there was a designated smoking area in the cafeteria until 1997.

The agency-tenants of the Bolling Center have formed a Cooperative Administrative Support Unit (CASU), which operates through a Board of Directors on which representatives of each agency serve. The Board meets to discuss and decide issues regarding the building and facilities. In May 1997, following a series of discussions on the matter, the subject of elimi-nating smoking in the cafeteria was raised at a Board meeting. GSA's representative stated that GSA adhered to its previously announced position that it would eliminate smoking in the cafeteria when all the tenant agencies approved. A motion was made, and carried unanimously, to give such approval. Among those voting was SSA's representative, Stuart Bent, sitting in for Michael Grochowski, SSA's Regional Commis-sioner. It was understood, however, that this approval was contingent on each agency's notifying the union representing its employees and discharging its bargaining obligations, if any.

SSA's Labor Relations Supervisor, Marvin Reed, told Acting Union President William Clause, on or around May 28, 1997, that there had been talk at the Board meeting about banning smoking in the cafeteria (Tr. 61-62). On June 12, Union President Arthur Johnson sent SSA management a written request to negotiate on the substance, impact, and implementa-tion of "Cessation of Smoking in the Richard Bolling Building Cafeteria Effective August 1, 1997." On June 26, Marvin Reed, acting for Human Resources Center Director Margaret May, responded to Johnson's request with a letter stating that the request was not timely under the terms of National Agreement between SSA and the Union's parent organization, American Federation of Government Employees (AFGE). The request to negotiate was, therefore, denied, but the Union was invited "to discuss any concerns you have." [n1]

Between July 2 and 9, the members of the "CASU Tenant Board" (apparently another name for the Board of Directors) signed a Memorandum of Understanding (MOU), for presentation to GSA, affirming their request "to prohibit smoking in the entire cafeteria dining area effective August 1, 1997." The July 1997 MOU states further that the members understand "that GSA has agreed that a unanimous consensus of the Agency Heads in the building will serve as the basis for banning smoking in the cafeteria dining area." Regional Commissioner Grochowski signed the MOU for SSA.

On August 1, the ban went into effect and has continued in effect.

B. Relevant Prior Agreements and Their Bargaining History

1. Developments preceding first "National Agreement" "no smoking" provision

Until 1987, SSA employees were permitted to smoke in their work areas and generally throughout the Bolling Center. In April 1987, SSA and the AFGE component representing the nationwide SSA bargaining unit entered into an MOU agreeing to "work toward a smoke-free work environment in all SSA instal-lations." Meanwhile, smoking was prohibited in all "general work areas" except those portions of the general office space designated as smoking areas, in all private offices and suites, and in other areas where smoking was specifically prohibited by GSA regulations. The MOU also contained provisions for SSA's providing and maintaining designated smoking areas. (R. Exh. 1.)

In August 1987, the Department of Health and Human Services, then the parent agency of SSA, issued an updated Chapter 1-60 of its General Administration Manual, entitled "Policy on Smoking in HHS Occupied Buildings and Facilities" (R. Exh. 2). The chapter's stated general policy is "to establish a smoke-free environment in all HHS building space" (emphasis added). Under "Applicability and Scope," the chapter provides that:

In multi-tenant buildings, the Departmental policy will apply within the confines of the assigned space over which HHS elements have exclusive custody and control including corridors, rest rooms, cafeterias, stairways and other public space on floors or within blocks of space assigned to HHS elements.

Next, in a section setting forth the responsibilities of HHS officials, Chapter 1-60 provides that, in "HHS occupied buildings, facilities, and space," the senior HHS official is responsible for implementing the Secretary's policy "as it relates to space under his or her jurisdiction and control," and, further, for "negotiat[ing] . . . [ v55 p543 ] to insure that, as a minimum, the GSA smoking policy is enforced in non-HHS occupied space in the building. Additionally, the senior HHS official is encouraged to seek adoption of the HHS policy by all occupants in a multiple occupancy building."

A final instruction in the "Responsibilities" section provides in pertinent part that, "[p]rior to implementation of this chapter or any provision thereof, the organizational element shall meet its obligation under 5 U.S.C. Chapter 71, as appropriate, where there is an exclusive representative for the employees."

On the same date that it issued the updated Chapter 1-60, HHS issued "Instruction 792-3, Workplace Smoking Policy: Guidance on Personnel Issues" (R. Exh. 3). A covering memorandum describes the instruction as being effective immediately, provided, however, that "changes in conditions of employment for bargaining unit employees must be implemented consistent with labor relations responsibilities in 5 U.S.C. Chapter 71 and provisions of negotiated agreements." Within the text of the instruction, the Department's policy is restated as the establishment of "a smoke-free environment in all HHS controlled building space (Exhibit 792-3-A)" (emphasis added). The referenced Exhibit 792-3-A is a memorandum signed by the Secretary of Health and Human Services in which he directed Department officials "to move to establish a smoke-free environment in all building space where they have space management responsibility consistent with local labor-management agreements" (emphasis added).

2. The successive "no smoking" provisions in "National Agreement[s]"

Over several months in 1988, SSA and AFGE negotiated to reach a contract to replace their expiring National Agreement. They reached a tentative agreement in July 1998, but the AFGE membership failed to ratify it. However, the Federal Service Impasses Panel imposed the rejected portions on AFGE. Following the Panel's decision, the parties signed the agreement and it became effective on January 25, 1990.

Article 9 of the 1990 National Agreement is entitled "Health and Safety." Its Section 17, entitled "Smoke Free Environment," provides in pertinent part:

In keeping with the parties' concern for the health, safety and well-being of all SSA employees, there shall be "no smoking" [quotation marks in original] in any SSA facility beginning October 3, 1988, in accordance with HHS Chapter 1-60, General Administrative Manual, and HHS Instruction 792-3, Personnel Manual.

The October 1988 date for implementation of the "no smoking" provision was the date agreed upon in July 1988 on the assumption that the agreement would have been ratified by that date.

When Section 17 was implemented, all SSA-controlled spaces, including cafeterias, were declared smoke-free. In addition, the entire Federal Building that SSA shares with other Federal agencies in downtown Manhattan, including two cafeterias, became smoke-free without further negotiations with the local AFGE affiliate. The record does not reveal how this policy meshed with GSA's policy concerning spaces shared with other tenants. On the other hand, as noted above, the cafeteria in the Bolling Center maintained a designated smoking area.

When the national parties met to replace the 1990 agreement, AFGE proposed a Section 17 that omitted all of the existing language after "SSA facility." SSA accepted this proposal, and the new Section 17 became: "In keeping with the parties' concern for the health, safety and well-being of all SSA employees, there shall be `no smoking' in any SSA facility." Lionel Hall, a member of SSA's team that negotiated the 1993 agreement, testified that he had no specific recollection of discussions regarding the omission of the language referring to the HHS manual provisions, but that he believed it to have been understood that the meaning of Section 17, to the extent that it was derived from those HHS directives, was unchanged. The 1993 language was incorporated into Article 9, Section 17, of the parties' 1996 National Agreement without further substantive negotiations.

Discussion and Conclusions

A. Issues Presented

SSA does not contest that it had a duty to negotiate over the substance of its smoking policy, to the extent that such duty was not satisfied through its prior negotiations. There is, therefore, no issue as to the General Counsel's having presented a prima facie case. In essence it is that SSA violated sections 7116(a)(1) and (5) of the Statute by supporting the change in smoking policy, in a manner that was calculated to cause such change, while refusing to negotiate with the Union over that support.

SSA presents two defenses to this prima facie case. The first is that the subject matter is "covered by" the parties' contracts, viewed in light of their bargaining history. The second is that AFGE waived its right, and that of its affiliates, to bargain over this subject. [ v55 p544 ]

B. The Effect of the Parties' Prior Agreements

1. The applicable framework for analysis

The General Counsel and SSA have argued this case as one involving, principally, the Authority's "contained in"/"covered by" analysis (also known simply as the "covered by" doctrine, or analysis) for determining whether the subject matter in dispute has been foreclosed from further bargaining. See U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA). With all due respect to their superior familiarity with this case, but also with full appreciation of the difficulty of navigating the precedential landscape in this area of the law of bargaining obligations, I view this case as falling rather within the ambit of the Authority's almost contemporaneous decision in Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (Decision and Order on Remand) (IRS), in which it prescribed an analysis for deciding a different class of cases involving defenses based on prior collective bargaining agreements. [n2]

The "covered by" analysis applies when an agency defends its refusal to bargain over a specific mid-term proposal based on the contention that what the parties' collective bargaining agreement has to say about the subject matter, explicitly or implicitly, has foreclosed further bargaining on that matter. Department of Health and Human Services, Social Security Administration, 47 FLRA 1206, 1210 n.2 (1993). It is not clear in what other situations, if any, the Authority intended the "covered by" defense to be available. [n3] However, where, as here, an agency claims as a defense that a specific provision of the parties' collective bargaining agreement permitted its actions alleged to constitute an unfair practice, the Authority resolves the complaint by determining the meaning of the provision on which the agency relies. IRS, 47 FLRA at 1103.

The analysis required in cases governed by IRS is different from that employed in cases involving the SSA "covered by" defense, and they are neither interchangeable nor necessarily conducive to the same results. See Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois, 51 FLRA 858, 860, 864 n.7 (1996); U.S. Department of the Navy, Marine Corps, Washington, D.C., 48 FLRA 278, 281-82 (1993) (Decision and Order on Remand) [n4] ; U.S. Department of the Navy, Navy Exchange, Naples, Italy, Case Nos. CH-CA-60197, etc., ALJDR No. 125 at 9 (1996) (Authority did not, in SSA, authorize an agency to take unilateral action inconsistent with the parties' agreement; rather, under IRS, Authority will interpret a provision of the agreement when relied upon as a defense or authorization for the unilateral action taken).

IRS prescribes an analysis pursuant to which the Authority applies the same standards and principles in interpreting collective bargaining agreements as arbitrators apply in both the Federal and private sectors and as the Federal Courts apply under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, giving controlling weight to the parties' intent. In order to rebut the General Counsel's showing of a prima facie case, however, a respondent must establish by a preponderance of the evidence that the parties' collective bargaining agreement allowed its actions. IRS at 1110.

2. Application of the IRS analysis

The Bolling Center cafeteria is under the control of GSA, not SSA (Tr. 23, 31-33, 39, 149, 154). More generally, the Authority has long since found that "GSA has exclusive jurisdiction, custody and control of all public space in Government-owned and leased buildings." Department of Health and Human Services, Health Care Financing Administration, 24 FLRA 672, 675 (1986) (Decision and Order on Remand), petition for review denied, sub nom. American Federation of Government Employees, AFL-CIO v. FLRA, 840 F.2d 947 (D.C. Cir. 1988) (AFGE v. FLRA). Such public space includes cafeterias. AFGE v. FLRA at 951 n.4. While the record in this case does not reveal whether the cafeteria in the Bolling Center is "public" in the ordinary sense of the term, it is undisputed that, as noted above, it is under GSA's control. [n5] [ v55 p545 ]

Article 9, Section 17, of the parties' current National Agreement provides that "there shall be `no smoking' in any SSA facility." The question, then, is whether the cafeteria, which is the area concerning which the alleged unlawful action was taken, is an "SSA facility" within the meaning of Section 17. Given GSA's control of the cafeteria, and given what the precedential background reveals about the common understanding of the role of GSA, as opposed to SSA, in matters concerning spaces like cafeterias, this cafeteria seems an unlikely candidate for "SSA facility" status and cannot be so considered absent some persuasive evidence derived from Section 17's history.

Witnesses from both sides testified, with apparent conviction but with some conflicting impressions, about the parties' intent when negotiating Section 17. In evaluating their testimony, I employ the insight articulated by a commentator with vast experience across the spectrum of the field of dispute resolution:

It is relatively common knowledge that two people rarely perceive the same visual scenes or the same written words wholly identically . . . . [T]wo people entering into a contract will think they are perceiving its terms identically and even smile confidently as they sign the document binding themselves to its terms. Later, when events cause the parties to refer to the contract's terms for guidance, it is likely that they will perceive the pertinent contract provisions in somewhat different lights, interpreting the provisions, inclusively or exclusively, as best suits their separate needs.

John W. Cooley, Mediation and Joke Design: Resolving the Incongruities, 1992 J. Disp. Resol. 249, 288.

SSA's principal basis for contending that the parties understood the term, "SSA facility," to encompass such shared spaces as this cafeteria is Section 17's reference to the HHS directives. These directives supposedly demonstrate a broader meaning for this term. I am not persuaded that, whatever the overall aims of these directives, they signify an agreed-upon mandate to implement, within the period covered by the contract, smoking policies for shared, GSA-controlled spaces.

Both the updated Chapter 1-60 of the HHS General Administration Manual and HHS Instruction 792-3, to which the 1990 version of Section 17 refers, speak of applying HHS smoking policies within HHS-controlled space. While Chapter 1-60 refers to cafeterias in multi-tenant buildings as one of the types of spaces in which HHS policy is to apply, all of the examples given are qualified by the description, "within the confines of the assigned space over which HHS elements have exclusive custody and control" (emphasis added). [n6]

The only references to space that is not controlled by HHS are those in Chapter 1-60 directing the senior HHS official to negotiate to insure that GSA smoking policy is enforced and encouraging such officials to seek adoption of HHS policy by all other tenants in the building. Neither the direction to negotiate nor the encouragement to seek adoption of HHS policy has the effect of converting into an HHS facility any space not under HHS control. [n7] It is, of course, reasonable to argue that from 1995 on (when SSA separated from HHS and became an independent agency), Section 17's references to "SSA facilities" should be read to encompass facilities that had previously been controlled by SSA as part of HHS. However, neither Chapter 1-60 nor Instruction 792-3 provides any indication that the Bolling Center cafeteria would have been so considered in 1987, when HHS issued these documents.

The objective of these documents -- to establish a "smoke-free environment in all HHS building space" -- might ultimately require some accommodation on the part of GSA or other tenants, as is reflected in Chapter 1-60. However, this is insufficient basis on which to conclude that Section 17's ban of smoking "in any SSA facility beginning October 3, 1988, in accordance with" these documents, incorporates those portions of the [ v55 p546 ] HHS documents that deal with space that was not under HHS or SSA control.

First, the provision's effective date of October 3, 1988, indicates that the smoking ban contemplated in July 1988, when the parties tentatively agreed on Section 17, encompassed only spaces with respect to which the contracting parties could, by themselves, effect the necessary changes. Second, even if the HHS documents, viewed apart from Section 17, articulated policies that apply to space not under HHS control, the smoking ban in Section 17 applies, by its plain language, to "SSA facilities" and only "SSA facilities." In this context, the phrase, "in accordance with," might suggest that the nature of the smoking ban, including the general policies underlying it, should reflect the objectives of the referenced documents, but does not suggest any modification of the express limitation as to the space covered by the ban.

Nor does the fact that Section 17 is part of a comprehensive plan to create a smoke-free environment require a different reading. Section 17 provides what it provides, and apparently has wholly eliminated smoking in the vast majority of facilities that SSA occupies. If Section 17 does not cover areas controlled by others in multi-tenant buildings, the plan might be considered less comprehensive in degree but not in kind. Viewed another way, it is a plan, not a self-effectuating program, and Section 17 was not intended to provide the sole means to implement it.

But to the extent that Section 17 incorporates the contents and philosophy of Chapter 1-60 and Instruction 792-3, both of these documents contain relevant references to procedures for implementing their substantive provisions. Especially relevant are those concerning the agency's labor relations obligations. Chapter 1-60 specifically requires, prior to implementation of any of its provisions, satisfaction of any bargaining obligation under the Statute. In order to avoid the implications of this requirement, SSA must show that, by virtue of Section 17 and the negotiations leading to that provision, it had satisfied any statutory bargaining obligation.

If Section 17's reference to Chapter 1-60 and Instruction 792-3 can be read to permit application of the smoking ban to areas not otherwise considered "SSA facilities," it seems hazardous to presume a mutual understanding that such expansion of the negotiated phrase would be exempt from the bargaining obligation to which Chapter 1-60 refers. Stated otherwise, even if AFGE agreed in principle that the smoking ban might ultimately reach areas that were not then considered "SSA facilities," there is no basis on which to conclude that it acquiesced in such contemplated expansion without the further negotiations that the Statute would normally have required. [n8]

SSA relies also on the fact that the AFGE membership voted against ratification, at least in part because of the smoking ban, as evidence that the parties construed the 1988 smoking ban as covering facilities like the Bolling Center cafeteria. I find this unpersuasive for two reasons. First, the membership's rejection does not, in itself, reveal either how it understood the smoking ban's application in multi-tenant buildings or whether its understanding corresponded to that of AFGE's negotiators. Second, AFGE's position before the Impasses Panel, following the failure to ratify, was mainly to the effect that smoking policy should be determined locally, through employee voting and separate memoranda of understanding, not as part of a national contract (R. Exh. 6 at 2). This, again, does not reveal any specific understand-ing of Section 17's application in multi-tenant buildings.

The 1988 tentative agreement and the negotiations and events proximately surrounding that agreement provide SSA with its best opportunity to establish a contract defense through textual analysis or bargaining history. If SSA cannot make its case there it cannot make it anywhere. I regard as too remote to warrant detailed discussion most of the evidence presented as to previous and subsequent bargaining history relating to a smoking ban. Thus I have considered this evidence, including evidence concerning the parties' April 1987 MOU and its continuing viability, and do not find it probative except in one respect. I am persuaded that the parties did not mutually intend, by omitting any reference to HHS documents in Article 9, Section 17, of the 1993 National Agreement, to change that section's meaning from whatever it meant under the 1990 National Agreement (See Tr. 196-98, 205-07, 212-13).

Finally, the practice of the parties on a national level, in applying the 1990 agreement at facilities clearly identi-fied as multi-tenant buildings, is, if viewed most favorably to SSA, inconclusive. The only examples this record provides are the Bolling Center cafeteria, where the designated smoking area was retained until 1997, and the New York Regional Office (Manhattan) facility, where, presumably with the coop- [ v55 p547 ] eration of GSA or all the other tenants, a total "no smoking" policy was implemented in or around 1990.

For all these reasons, I conclude that SSA has not established a defense to its bargaining obligations under the IRS standard. For many of the same reasons, I would have concluded that SSA had not established an SSA "contained in"/"covered by" defense if that were the proper analysis to be applied. [n9]

C. The Defense of Waiver by Bargaining History

SSA's "waiver" defense suffers from the same problems as does its contract defense, regardless of which analysis is applied to the latter. A defense of waiver by bargaining history requires a showing that the matter about which a party seeks to be relieved from bargaining was "fully discussed and consciously explored during negotiations and [that the other party] consciously yielded or otherwise clearly and unmistak-ably waived its interest in the matter." Headquarters, 127th Tactical Fighter Wing, Michigan Air National Guard, Selfridge Air National Guard Base, Michigan, 46 FLRA 582, 585 (1992).

As discussed above, there is more than a reasonable doubt that the parties' negotiations even addressed smoking policy in spaces not controlled by SSA or HHS. SSA argues that AFGE received certain concessions and, in Nancy Ann Williams' words, "[SSA] paid a high price for a no smoking policy" (Tr. 172). However, SSA obtained a no smoking policy for the price it paid. That such no smoking policy covered non-SSA space, or that AFGE otherwise waived its interest in the smoking policy for such space, is far from clear and unmistakable.

I conclude that SSA has failed to establish a defense to the General Counsel's prima facie case and has violated sections 7116(a)(1) and (5) of the Statute.

The Remedy

Although the violation found here is a refusal to bargain over the substance of a change in conditions of employment, the General Counsel has not requested a status quo ante bargaining order. Instead, he has requested that SSA be required, upon request, to negotiate with the Union over actions it will take to remedy its unilateral support of the smoking ban in the cafeteria, including the possibility of changing its vote and requesting that the ban be rescinded. This appears to be an appropriate remedy in these circumstances. I shall recommend an order and notice based in substance on the proposed order and notice submitted by the General Counsel but modified to eliminate superfluous language and to conform to Authority usage. Accordingly, I recommend that the Authority issue the following Order:

ORDER

Pursuant to section 2423.41(c) of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Social Security Administration, Region VII, Kansas City, Missouri shall:

1. Cease and Desist from:

(a) Unilaterally changing conditions of employment by supporting the banning of smoking in the cafeteria of the Richard Bolling Federal Building without first completing bargaining with the American Federation of Government Employees, Local 1336, AFL-CIO, the exclusive representative of its employees.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured them by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Upon request, negotiate with the American Federation of Government Employees, Local 1336, AFL-CIO, the exclusive representative of its employees, over its support for the banning of smoking in the cafeteria of the Richard Bolling Federal Building.

(b) Post at its facilities at the Richard Bolling Federal Center copies of the attached notice on forms to be furnished by the Authority. Upon receipt of such forms, they shall be signed by the Regional Commissioner and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where [ v55 p548 ] notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced or covered by any other material.

(c) Pursuant to section 2423.41(e) of the Authority's Rules and Regulations, notify the Regional Director, Denver Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

Issued, Washington, D.C., July 30, 1998

____

JESSE ETELSON

Administrative Law Judge

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Social Security Administration, Region VII, Kansas City, Missouri violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

We hereby notify our employees that:

WE WILL NOT fail and refuse to bargain with the American Federation of Government Employees, Local 1923, AFL-CIO (the Union), the exclusive representative of our employees, concerning proposed changes in the working conditions of bargaining unit employees represented by the Union, including proposals to prohibit smoking in the cafeteria of the Richard Bolling Federal Building in Kansas City, Missouri.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL, upon request by the Union, bargain to the full extent of our discretion concerning actions to be taken by the Social Security Administration to support a rescission of the ban on smoking by our employees in the cafeteria of the Richard Bolling Federal Building and/or to reduce the impact of that ban on bargaining unit employees.

_________

(Activity)

Date__ By: ______

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Denver Regional Office, Federal Labor Relations Authority, whose address is: 1244 Speer Boulevard, Suite 100, Denver, CO 80204-3581, and whose telephone number is: (303) 844-5224.

File 1: Authority's Decision in 55 FLRA No. 95

File 2: ALJ's Decision

Footnote # 1 for
55 FLRA No. 95

• ALJ's Decision

SSA no longer relies on the alleged untimeliness of the bargaining request, and I shall not explore it further.

Footnote # 2 for
55 FLRA No. 95

• ALJ's Decision

In expressing my disagreement with the parties' framing of the issue to be resolved, I see no need to characterize them as having "erred," or otherwise to imply that a superior source of wisdom resides in this office.

Footnote # 3 for
55 FLRA No. 95

• ALJ's Decision

In Air Force Materiel Command, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 53 FLRA 1092, 1104- 05 (1998), Judge Devaney, affirmed by the Authority, held that the fact that the parties' contract covered the assignment of duties was not a defense to the allegation that the agency changed the employees' duties without bargaining over the impact and implementation of that change.

Footnote # 4 for
55 FLRA No. 95

• ALJ's Decision

By its action in the cited case, remanding for application of both the IRS and the SSA tests, the Authority made it possible to believe that it would entertain either or both as measures of appropriate defenses in unilateral change cases not involving mid-term proposals. However, that case was resolved without any further substantive decision. The Authority was never forced to confront the implications of the dual-defense suggestion -- for example -- that an agency might justify its unilateral action by relying on a contractual provision expressly prohibiting it.

Footnote # 5 for
55 FLRA No. 95

• ALJ's Decision

GSA's unequivocal control of the cafeteria distinguishes this situation from one in which, the facility in question being operated jointly by SSA and GSA, the Authority has left open the question of whether or not the areas involved in the dispute were SSA's "facilities" for statutory purposes. See Social Security Administration, 52 FLRA 1159, 1161, 1163, 1182 (1997) (Decision and Order on Remand). The Authority expressly recognized the distinction between these types of situations when it previously had the cited case before it. Social Security Administration, 45 FLRA 303, 316-18 (1992) remanded, sub nom. National Treasury Employees Union v. FLRA, 986 F.2d 537 (D.C. Cir. 1993).

Footnote # 6 for
55 FLRA No. 95

• ALJ's Decision

SSA negotiator Nancy Ann Williams testified that she understood, when Section 17 was negotiated in 1988, that the Chapter 1-60 reference to cafeterias meant that Section 17 covered cafeterias in multiple-tenant buildings, and that such understanding was effectuated at her Manhattan location (Tr. 173-74, 183). However, there is no probative evidence that this understanding was shared by any AFGE represen-tatives. Moreover, Williams also testified that Section 17's "no smoking" meant "no smoking in SSA controlled facilities or where you have any jurisdiction over the space" (Tr. 172). The ambiguity of her own understanding belies a mutual under-standing that "SSA facilities" included spaces controlled by others.

Footnote # 7 for
55 FLRA No. 95

• ALJ's Decision

There has been no contention that GSA, by failing to eliminate all smoking in the Bolling Center cafeteria until all agencies approved, was failing to enforce its own smoking policy.

Footnote # 8 for
55 FLRA No. 95

• ALJ's Decision

SSA negotiator Williams testified as to her understanding of the "bargaining obligation" language of Chapter 1-60 (Tr. 181- 82). However, as suggested in note 6, above, testimony about what any witnesses understood, or their speculations about what other participants understood, are insufficient to establish any mutual understandings.

Footnote # 9 for
55 FLRA No. 95

• ALJ's Decision

As I concluded in a recent decision, an MOU attached to Article 4 of these parties' 1996 National Agreement precludes SSA's reliance on the "covered by" prong of the "contained in"/"covered by" defense when the issue is SSA's duty to bargain mid-term concerning management-initiated changes in conditions of employment. Social Security Administration, Case No. WA-CA- 80113, OALJ 98-30 (June 23, 1998) slip opinion at 3-5, 12-13.