OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

DECISION

Findings of Fact

The Union is the exclusive representative of a unit of employees appropriate for collective bargaining at Respondent's facilities.

Prior to the events leading up to the filing of the charges in the instant case, Respondent allowed the employees in Building 410 to smoke in a designated area located in a hallway which led to the exterior of the building. The designated area in the hallway was equipped with a smoke eating device, an exhaust fan, tables, chairs and ashtrays. There were also signs identifying the area as a designated smoking area.

According to the credited testimony of Union President Walter Taylor and Mr. Edward Castagno, a delivery driver who works in Building 410, during the early part of December 1991, Mr. Castagno was on his way to the above described smoking area when he met his supervisor, Mr. Donis Layton, coming from the opposite direction. Upon informing Mr. Layton where he was heading, Mr. Layton informed him that he could no longer smoke in the designated area since "they've stopped it because the ventilation wasn't proper". After hearing from Mr. Layton, Mr. Castagno continued on to what had been the smoking area and discovered that the ash trays and smoking signs had been removed. He then left the building and entered a gazebo which was located directly outside the hallway door leading to the exterior of the building. The gazebo is neither screened nor air conditioned. Further, according to Mr. Castagno, upwards of twenty smokers per day were accustomed to using the designated smoking area in Building 410.

According to the testimony of Mr. Taylor and Mr. Castagno, since the closure of the smoking area in Building 410, the employees working in Building 4l0 who want to smoke have no choice but to use the gazebo area, where the temperature at times reached 116 degrees and the smokers, at times, were subjected to hordes of white flies.

Upon hearing, for the first time, of the closure of the smoking area in Building 4l0 from Mr. Castagno and employee Jim Grainger, Mr. Taylor called Ms. Linda Connelly, Respondent's Labor Relations Officer, and asked her to have the smoking area restored or to bargain over the closure.⁽¹⁾ Ms. Connelly refused to reinstate the smoking area and stated that there would be no smoking in any building at Williams Air Force Base.

According to a smoking evaluation study, dated March 21, 1991, which was conducted by "Bioenvironmental Engineering Service", the ventilation in what was the smoking area in Building 410 was inadequate. In this connection, Ms. Connelly testified that Respondent had insufficient funds available to perform the modifications necessary to bring the smoking area into conformance with existing standards. She further noted that the Air Force Base was scheduled to close in 1993. Finally, Ms. Connelly did not supply any cost estimates for the modifications that would be necessary in order to continue using the hallway space for a smoking area.

The Union and the Respondent are parties to a "Memorandum of Understanding" dated December 14, 1988 which provides, among other things, that smoking shall be permitted only in designated areas. Further, according to the memorandum, "when a question is raised concerning the adequacy of a designated smoking area, the Bioenvironmental Office shall be consulted before a final decision is made with respect to the area." Finally, according to the memorandum, "If current designated smoking areas cannot be brought into compliance . . ., the unit commander will make reasonable efforts to identify alternate acceptable areas."

The General Counsel takes the position that Respondent violated Sections 7116(a)(1) and (5) of the Statute by virtue of its actions in closing the designated smoking area in Building 410 without first giving the Union notice and an opportunity to bargain over the substance, impact and manner of implementation of its decision.

Respondent, on the other hand, offers various alternate defenses to its failure to give the Union prior notice and the opportunity to bargain over the closure of the designated smoking area. Namely, that by entering into the Memorandum of Understanding dated December 14, 1988, the Union waived its right to bargain over any changes in smoking areas, the area n question was not ever designated a smoking area, and that the Union not only failed to request bargaining over the closure of the smoking area located in Building 410, but also failed to submit any bargaining proposals. With respect to remedy, it is Respondent's position, that in the event a violation of the Statute is found, only a "prospective bargaining order" should be issued, rather than a "status quo ante" remedy as requested by the General Counsel. In this connection, according to Respondent, "any expenditure of Respondent's funds in this case for minor construction would be only a gross waste of limited resources" because the base is scheduled for closing in 1993.

Contrary to the contention of the Respondent, I can not find on the basis of the instant record that the Union by entering into the "Memorandum of Understanding" waived its right to notice and the opportunity to bargain over changes in designated smoking areas. Rather, I find that by entering into the Memorandum of Understanding the Union merely agreed that all smoking would be confined to designated smoking areas. The agreement is silent with respect to the Union's bargaining rights in the event that a designated smoking area is changed, closed, etc. In order for a waiver to be found, such waiver must be clear and unmistakable. U.S. Department of the Treasury, Customs Service, Washington, D.C., and Customs Service, Northeast Region, Boston, Massachusetts, 38 FLRA 770, 784. Such is not the case herein.

With respect to Respondent's contention that the area in dispute in Building 4l0 was never designated a smoking area, I find, based primarily on the credited testimony of Mr. Taylor and Mr. Castagno that the area was indeed a recognized smoking area. Thus, according to their testimony, the area was used for over a year as a smoking area and was equipped with exhaust fans, ash trays, signs and smoke eaters, etc.

Finally, with respect to Respondent's contentions, i.e. that it did not violate the Statute since the Union never made a demand to bargain and/or failed to submit bargaining proposals, I find such contentions to be without merit. Having credited the testimony of Mr. Taylor, I find that he did in fact request bargaining over the closure of the smoking area. While it is true that the Union did not submit any bargaining proposals, I know of no Authority decision requiring the presentation of bargaining proposals simultaneously with a bargaining demand. Moreover, and in any event, since the Union became aware of the closure of the designated smoking area only after it was a fait accompli, a bargaining demand is not a requisite to establishing a 7116(a)(1) and (5) violation. U.S. Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 38 FLRA 887.

Having found that the Respondent unilaterally and without prior notice to the Union closed the designated smoking area in Building 4l0,⁽²⁾ I further find that by such act the Respondent violated Sections 7116(a)(1) and (5) of the Statute.

As noted above, Respondent contends, contrary to the General Counsel, that a status quo ante remedy would be inappropriate, primarily because the base is scheduled for closure sometime in 1993 and any minor construction "would be a gross waste of limited resources". Respondent, however, has not seen fit to supply any cost estimates with respect to the construction necessary to bring the designated smoking area up to the required standards. Nor has Respondent seen fit to give an exact date that the base is scheduled to close. Accordingly, I am without the tools necessary to evaluate and/or weigh the merits of Respondent's contention. In such circumstances, I agree with the General Counsel that a statusquo ante remedy would best effectuate the purposes and policy of the Statute.

In view of the foregoing findings and conclusions, it is hereby recommended that the Authority issue the following Order.