National Treasury Employees Union and Internal Revenue Service, Indianapolis District (Authority decision, November 12, 1987)

Final FLRA decision. The Authority finds the union's smoking accommodation proposal within the duty to bargain and orders the agency to bargain on request or as agreed. 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

NTEU proposed that employees could smoke in designated areas but would stop or make accommodations when nonsmoking employees requested it. The IRS argued that the proposal would control managers and other employees outside the bargaining unit, especially in private offices. The Authority found that the proposal primarily protected nonsmoking bargaining unit employees attending meetings and would affect managers only in limited circumstances. It held the proposal negotiable and ordered the IRS to bargain on request.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(D) and (E).
• Outcome: Proposal found negotiable; IRS ordered to bargain on request or as agreed.
• Key point: A limited effect on managers during meetings did not put the union's smoking accommodation proposal outside the duty to bargain.

Full text (FLRA public release)

[ v30 p32 ]

30:0032(8)NG

The decision of the Authority follows:

30 FLRA NO. 8
30 FLRA 32

12 NOV 1987

NATIONAL TREASURY EMPLOYEES UNION

Union

and

INTERNAL REVENUE SERVICE
INDIANAPOLIS DISTRICT

Agency

Case No. O-NG-1402

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) and concerns the negotiability of a single proposal. For the following reasons, we find the proposal to be negotiable.

II. Proposal

Article 2A(7)

All employees may smoke within the confines of designated smoking areas throughout the District. Individuals occupying designated smoking areas within the District will respect the rights of nonsmokers and will refrain from smoking at the request of nonsmoking employees or make other suitable accommodations.

III. Positions of the Parties

The Agency recognizes that the Authority has found proposals concerning smoking to be negotiable even where they would affect nonunit employees. However, the Agency contends that the proposal in this case is different in that it would directly prescribe the conduct of managerial employees. The Agency argues that the impact of the proposal on nonbargaining unit employees is significant and direct, and that in fact the proposal primarily will affect nonbargaining unit employees as most all of the Agency's private offices are occupied by managerial employees.

The Union contends that the intent of the proposal is to enable nonsmoking bargaining unit employees to ask individuals occupying designated smoking areas to refrain from smoking when bargaining unit employees must be in these areas, thereby protecting the health and safety of unit employee nonsmokers. Accordingly, the Union asserts that the primary impact of its proposal is on the nonsmoking unit employees whom it is seeking to protect.

IV. Analysis and Conclusion

As the parties noted, we recently decided in National Association of Government Employees, Local R14-32 and Department of the Army, Fort Leonard Wood, Missouri, 26 FLRA 593 (1987), that proposals concerning the implementation of an agency smoking policy were negotiable. We rejected the Agency's argument in that case that the proposals were non-negotiable because they were determinative of the working conditions of nonbargaining unit employees. We concluded that the proposals primarily affected nonsmokers rather than nonunit employees. Therefore, we found that the proposals were not directly determinative of the conditions of employment of nonunit employees.

We find that the proposal in this case is negotiable on the same grounds as we found the proposal in Fort Leonard Wood to be negotiable. While the proposal therein sought to extend the rights of smokers and the proposal in this case seeks to extend the rights of nonsmokers, we find that the proposals are similar in that they are not directly determinative of the rights of nonbargaining unit employees. In that regard, the present proposal would have an impact on managerial or other nonbargaining unit employees only when they are having a meeting in their office attended by nonsmoking bargaining unit employees. Moreover, we note that the General Services Administration (GSA) smoking regulations are intended to protect the health and safety of all employees. While the proposals permit smokers to smoke within their private offices, the proposals generally preclude smoking in "public" areas. When employees are summoned to a meeting in a manager's office, that office loses its privacy for the duration of the meeting. A proposal seeking to protect the rights of nonsmoking employees who are required to attend such meetings is both consistent with the GSA regulations and with our standard, set forth in American Federation of Government Employees, Local 32, AFL - CIO and Office of Personnel Management, 22 FLRA 478 (1986), petition for review filed sub nom. American Federation of Government Employees, Local 32 v. FLRA, No. 86-1447 (D.C. Cir. August 11, 1986) (proposals which have only a limited or indirect effect on nonbargaining unit employees are within the duty to bargain).

V. Order

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

Issued, Washington, D.C., November 12, 1987.

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.