---

33 FLRA No. 8

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 250

and

DEPARTMENT OF HEALTH AND HUMAN SERVICES

FAMILY SUPPORT ADMINISTRATION, WASHINGTON, D.C.

0-NG-1524

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 229

and

DEPARTMENT OF HEALTH AND HUMAN SERVICES

HEADQUARTERS OFFICE, WASHINGTON, D.C.

0-NG-1536

NATIONAL TREASURY EMPLOYEES UNION

CHAPTER 217

and

DEPARTMENT OF HEALTH AND HUMAN SERVICES

REGION VII, KANSAS CITY, MISSOURI

0-NG-1545

DECISION AND ORDER ON NEGOTIABILITY ISSUES

October 13, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

These consolidated cases are before the Authority because of negotiability appeals filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). They concern the negotiability of proposals relating to the Agency's policy, reflected in its regulation, of creating a smoke-free environment in Agency-controlled building spaces.

The parties requested and were granted permission to consolidate the three cases. The parties agree that the three cases contain common questions of law and fact. Neither party requested that the Authority hold a hearing under section 7117(b)(3) of the Statute before making a determination as to whether a compelling need exists for the Agency's regulation creating a smoke-free environment.

We conclude that there is no compelling need under section 7117(a)(2) of the Statute and section 2424.11(a) of the Authority's Rules and Regulations for the Agency's regulation which calls for a smoke-free environment in all Agency-controlled building space. We also conclude that the Union's proposals do not concern the methods and means of performing work under section 7106(b)(1) of the Statute and do not violate the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute. Therefore, the Union's proposals, which seek to negotiate over the Agency's smoking policy, are within the Agency's duty to bargain.

II. Proposals in Dispute

The proposals in Case Nos. 0-NG-1524, 0-NG-1536, and 0-NG-1545 provide generally for the accommodation of employees who smoke by establishing designated areas in which smoking will be allowed. The proposals are found in the Appendix to this decision. The record indicates that the proposals as a whole, rather than individual paragraphs, are in dispute. Paragraphs as to which there is no dispute are noted in the Appendix.

III. Positions of the Parties

A. The Agency

The Agency contends that its policy requiring the establishment of a smoke-free environment in all Agency-controlled building space is not subject to the duty to bargain because it: (1) is based on an Agency rule or regulation for which a compelling need exists under section 7117(a)(2) of the Statute and section 2424.11(a) of the Authority's Rules and Regulations; and (2) involves the methods and means of performing the Agency's work within the meaning of section 7106(b)(1) of the Statute.

The Agency issued its policy establishing a smoke-free environment on August 25, 1987, in General Administration Manual chapter 1-60. Personnel guidance on implementing the policy was set forth in Department of Health and Human Services (HHS) Personnel Manual, Instruction 792-3. General Administration Manual chapter 1-60-20 states: "The Department's policy is to establish a smoke-free environment in all HHS building space." The Agency contends that a compelling need exists for this "smoke-free" policy under the criterion set forth in section 2424.11(a) of the Authority's Rules. According to the Agency, the policy is an integral element of its overall mission of fostering research in and informing the public of the hazards of cigarette smoking and is essential to carrying out that mission. Therefore, the Agency maintains that the Union's proposals, which concern the establishment and design of smoking areas in Agency building space, conflict with the Agency's smoke-free policy and are outside the duty to bargain under section 7117(a)(2) of the Statute.

In support of its position that there is a compelling need for its regulation establishing a smoke-free policy, the Agency cites its leadership role in the area of smoking and health. The Agency also notes the conclusions of the Surgeon General on the hazards of environmental tobacco smoke. The Agency emphasizes the unique role of the Secretary of HHS, whom Congress has directed "to act, not as a regulator or enforcer of certain standards, but as an educator, a researcher, a coordinator of information, toward the end of enabling individuals 'to make informed decisions about smoking.'" Agency's Response at 13, footnotes omitted. The Agency contends that in order to carry out that Congressionally-mandated mission and in view of the proven hazards of smoking, "the Secretary must establish an uncompromisingly safe environment in his own facilities to be at all credible." Agency's Response at 15 (emphasis in original).

The Agency also asserts that its regulation banning smoking is the only appropriate one for the effective and efficient accomplishment of its mission of research and informing the public on the dangers of smoking because: (1) a smoke-free environment in its own office space is necessary in order for it to be an effective advocate; and (2) nothing less than a total ban on smoking can assure adequate protection of the occupants of Agency office space. The Agency maintains that the regulation directing all its components to establish a smoke-free environment "is thus an integral part of its mission to foster research on the hazards of smoking and educate the public on the results thereof." Agency's Response at 16.

As another basis for declaring the proposals to be nonnegotiable, the Agency asserts that its policy requiring a smoke-free environment involves the methods and means of performing its work in the field of smoking and health. The Agency contends that the proposals are, therefore, negotiable only if it elects to bargain on them under section 7106(b)(1) of the Statute. The Agency contends that its policy on a smoke-free environment "has the tendency to 'accomplish or further' matters that are 'directly and integrally' related to HHS's smoking and health 'operations as a whole.'" Agency's Response at 25. The Agency states that the Secretary of HHS is responsible under law for conducting and supporting research and for informing the public of the dangers to health caused by smoking. The Agency asserts that having a smoke-free environment in Agency office space contributes to the fulfillment of that responsibility by serving as an example to the public. The Agency concludes that its smoke-free policy is, therefore, a means of furthering the performance of the Agency's work. The Agency argues that this case is distinguishable from other cases involving smoking issues because "[i]t involves a decision at the level of the Secretary of HHS, who is charged by Congress with being the nation's leading spokesman on smoking and health, to act upon the Department's most recent research involving passive smoking." Agency's Response at 27-28, footnote omitted.

The Agency also submits evidence of efforts being made by the Health Care Financing Administration (HCFA) to encourage hospitals to adopt strict smoking policies. The Agency maintains that its smoke-free policy provides leadership in this endeavor and is an important tool in leading the way to a smoke-free environment in health care institutions.

With regard to Article 1, Section 2 of the proposals in Case No. 0-NG-1536, the Agency contends that allowing employees to "elect to smoke or not smoke without fear of penalty or reprisal" would prevent management from disciplining employees who violate its restrictions on smoking. The Agency maintains, therefore, that the proposal interferes with management's right to discipline employees and is outside the duty to bargain under section 7106(a)(2)(A) of the Statute.

The Agency also submitted supplemental statements maintaining that the proposals calling for the designation and implementation of smoking areas are in direct conflict with the regulations establishing the Agency's policy on a smoke-free environment. The Agency contends that it is impossible to allow smoking areas in a smoke-free environment because of the lack of sufficient ventilation in the buildings. The Agency repeats its argument that the smoke-free policy involves the methods and means of performing work. The Agency argues that these considerations are particularly relevant in cases which involve the Office of the Secretary.

B. The Union

The Union disputes the Agency's contention that there is a compelling need for its regulation establishing a smoke-free environment. The Union contends that the Agency has not shown that the regulation is essential for achieving the Agency's mission. The Union maintains that the Agency has failed to show that a mission of HHS is to "advocate for public health vis-a-vis the hazards of tobacco smoke." Union's Response at 2. Further, the Union contends that even if that advocacy is one of the Agency's missions, the Agency has failed to prove that imposing a smoke-free environment in its office space is essential to the accomplishment of that mission.

The Union points out that the Agency is one of the largest agencies in the Federal Government and that it has numerous administrations and services involved in activities other than providing information on the hazards of smoking. That function, the Union asserts, is performed by the Office of Smoking and Health, which has a staff of approximately 20 people, and is not a function of any of the organizational entities which are parties to these cases. The Union claims that "[t]he Agency has only presented evidence on how the rule [banning smoking] is needed to implement the mission of one small office in the Public Health Service of HHS. This is not adequate evidence to meet its burden of proof that the rule is essential to the accomplishment of the mission of HHS or one of its primary subdivisions." Union's Response at 3, citation omitted.

The Union states that 15 U.S.C. § 1341, which is relied on by the Agency as support for its role in the field of smoking and public health, "only directs the Agency to conduct research and provide information and educational programs concerning the health effects of smoking" but does not direct the Agency to advocate or implement any smoking policies. Id. The Union contends that the Agency has not been given the authority to regulate or ban smoking in its offices and asserts that "it is clear that advocating non-smoking by serving as a role model to the public and/or banning smoking is not part of [the Agency's] mission." Union's Response at 4.

The Union maintains that even if the Agency's mission "is to advocate for public health vis-a-vis the hazards of tobacco smoke, the ban on smoking is not essential to this mission." Union's Response at 4. The Union contends that the Agency has shown only that its regulation "would be helpful at most, but certainly not essential." Id. The Union also contends that the Agency has failed to show how imposing a restrictive smoking policy rather than a total ban on smoking would adversely affect the Agency's credibility with the public.

The Union also denies that its proposals infringe on the Agency's right to determine the technology, methods, and means of performing its work within the meaning of section 7106(b)(1) of the Statute. The Union maintains that the Agency has not shown that a total ban on smoking in its office spaces is required in order to achieve its objectives of promoting health and protecting nonsmokers from passive smoke.

With regard to Article 1, Section 2 of the proposals in Case No. 0-NG-1536, the Union denies that the proposal violates section 7106(a)(2)(A) of the Statute. The Union contends that the proposal is based on the policy statement recognizing the needs of smokers and the need for designated smoking areas which is contained in General Services Administration (GSA) regulations governing smoking in public buildings. The Union states that the proposal is not intended to provide employees with authority to violate any work rule regarding smoking.

IV. Discussion

A. The Agency Has Not Shown that There Is a Compelling Need for Its Regulation Establishing a Smoke-Free Environment

Under section 2424.11(a) of the Authority's Rules, a compelling need exists for an agency rule or regulation if "[t]he rule or regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the agency or primary national subdivision in a manner which is consistent with the requirements of an effective and efficient government." We find that the regulation in dispute is not essential to carrying out the Agency's mission. That is, the requirement of a smoke-free environment is not essential to the accomplishment of the Agency's mission of researching and informing the public as to the effect of smoking on health.

In order to show that a proposal is nonnegotiable because it conflicts with an agency regulation for which there is a compelling need, an agency must: (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with reference to the Authority's standards set forth in section 2424.11 of its Regulations. American Federation of Government Employees, Local 3836 and Federal Emergency Management Agency, Washington, D.C., 31 FLRA 921, 930 (1988).

The Agency regulation at issue is General Administration Manual chapter 1-60, Policy On Smoking In HHS Occupied Buildings and Facilities, issued August 25, 1987. The regulation states that the Agency's "policy is to establish a smoke-free environment in all HHS building space." General Administration Manual chapter 1-60-20. We conclude from its terms that the regulation is an Agency-wide regulation. See General Administration Manual chapter 1-60-00.

The Union's proposals seek to negotiate exceptions to the policy for employees who smoke. The proposals in the three cases would require the Agency to designate and maintain smoking areas and to allow employees who wish to smoke to use those areas. We conclude that the Union's proposals conflict with the regulation because they seek to permit smoking, if only to a limited extent, while the regulation prohibits smoking completely in all Agency building space.

We turn now to the question of whether there is a compelling need for the Agency's regulation so as to preclude bargaining over the proposals. The regulation establishes a policy concerning smoking, a subject with respect to which the Agency--in particular, the Secretary of HHS--has been given specific responsibilities, namely, to perform research concerning the effects of smoking on health and to inform the public as to the results of that research. 15 U.S.C. § 1341. The Agency maintains that the regulation is essential to carrying out its mission because of the specific role of the Secretary of HHS in informing the public on the hazards of smoking to personal health.

The Authority addressed a similar issue in National Association of Government Employees, Local R14-32 and Department of the Army, Fort Leonard Wood, Missouri, 26 FLRA 593 (1987). In that case, the Authority found that there was no compelling need for the agency regulations raised as a bar to the negotiation of proposals over the activity's smoking policy. The Authority found that the agency demonstrated generally that smoking can have deleterious effects on employee health and that the costs associated with those effects in terms of workforce effectiveness and productivity can be significant. However, the Authority determined that, even assuming that the objectives of the regulation were related to the accomplishment of the agency's mission in an effective and efficient manner, the agency had not shown that the regulatory restrictions as to the areas in which smoking would be permitted were essential within the meaning of the Authority's criterion. Id. at 598.

In this case, the Agency submitted materials concerning the health hazards of smoking to support its claim that smoking presents a health hazard to its employees and that limiting smoking among its employees would be consistent with its knowledge of that hazard. However, although the Agency claims that the connection between the restrictions on smoking and the mission of the Agency is more direct in this case than in Fort Leonard Wood (Agency's Response at 17), the Agency has not shown that banning smoking among its own employees is essential to the performance of its Congressionally-assigned responsibilities of research and information. See Fort Leonard Wood, 26 FLRA at 598.

The Agency claims that the establishment of a smoking ban for its employees would substantiate the credibility of the information which it conveys to the public concerning the harmful effects of smoking. In our view, that claim is speculative at best. Even assuming, however, that the claim regarding credibility establishes a connection between the regulation and the Agency's mission, it is not an essential connection. The Agency does not establish that the lack of a total ban on smoking for Agency employees would prevent it from performing research on the effects of smoking on health or of informing the public of the dangers of smoking. Similarly, the lack of a total smoke-free policy for its employees would not prevent the Agency from encouraging private hospitals to adopt smoke-free policies.

We find, therefore, that the smoke-free policy set out in the Agency's regulation is not essential to fulfilling the Agency's mission of performing research and informing the public on the hazards of smoking. Rather, it is merely helpful or desirable to performing that mission. Therefore, we conclude that there is no compelling need for the Agency's regulation banning smoking under section 2424.11(a) of the Authority's Rules and Regulations so as to bar negotiations on the Union's proposals.

B. The Union's Proposals Do Not Concern the Methods or Means of Performing Work

In National Treasury Employees Union and Internal Revenue Service, Los Angeles District, 32 FLRA 182 (1988), petition for review filed sub nom. Internal Revenue Service, Los Angeles District v. FLRA, No. 88-1550 (D.C. Cir. July 29, 1988), we reiterated the test for establishing whether a proposal concerning conditions of employment is negotiable only at the election of management because it directly interferes with management's right to determine the methods and means used in performing work. We stated that "means" refers to any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishing or furthering of the performance of its work and that "method" refers to the way in which an agency performs its work. We further held that the term "performing work" is intended to include those matters which directly and integrally relate to the Agency's operations as a whole. Id.

The Agency maintains that because the Secretary of HHS, under the Comprehensive Smoking Education Act, 15 U.S.C. § 1341, is "directly charged by Congress to implement the national policy to educate the public on the hazards of tobacco smoke" (Agency's Statement of Position at 4), a ban on smoking is a crucial component of the methods and means of carrying out that policy. However, that Act provides only for the role of the Secretary in conducting research on smoking and providing information to the public. The Agency has been unable to point us to any provision of law or regulation which gives the Secretary the responsibility to ban smoking in HHS, or any other, buildings and facilities.

We conclude that the Agency's policy concerning a smoke-free environment in Agency-controlled space is not a method or means of performing the Agency's work within the meaning of section 7106(b)(1) as established by Authority precedent. The ban on smoking in Agency building space is not a policy which pertains to the performance of the Agency's work of researching the health effects of smoking and informing the public about those effects. It is not directly and integrally related to the Agency's operations. Rather, the Agency's smoke-free policy serves only to regulate the conduct of its employees. As the Agency acknowledges, "Congress has directed [the Secretary of HHS] to act, not as a regulator or enforcer of certain standards, but as an educator, a researcher, a coordinator of information, toward the end of enabling individuals 'to make informed decisions about smoking.'" Agency's Response at 13, footnote and citation omitted. Therefore, the work of the Agency is not to regulate or ban smoking. Consequently, the Agency has not demonstrated that its regulation requiring a smoke-free environment in Agency building space constitutes the methods and means by which it performs its work under section 7106(b)(1) of the Statute.

Accordingly, we find that the Union's proposals do not involve the methods or means of performing work under section 7106(b)(1) of the Statute and, therefore, are not removed from the duty to bargain under that section.

C. Article 1, Section 2 of the Proposals in Case No. 0-NG-1536 Does Not Violate Management's Right to Discipline

Article 1, Section 2 addresses the rights and concerns of both smoking and nonsmoking employees and states that "employees may elect to smoke or not smoke without fear of penalty or reprisal." Union's Petition for Review, Attachment 1. The Agency contends that the proposal interferes with its right to discipline employees by allowing employees to smoke despite the Agency's smoke-free policy. The Union contends that the proposal only recognizes the right of employees to smoke, which is "a right specifically recognized in the GSA regulations on smoking," and states that it "is not intended to provide employees with a right to refuse to comply with any work rules established by the employer." Union's Petition for Review at 2.

We agree with the Union that this proposal does not interfere with management's right to discipline employees. Rather than creating a restriction on management's rights, this proposal concerns only the recognition by the Agency that employees who wish to smoke may do so in areas designated for smoking which have been negotiated by the parties. The Agency would not be precluded from disciplining employees who smoke in areas where smoking is not permitted. Therefore, the Union's proposals, including Article 1, Section 2, are negotiable conditions of employment which are not excluded from the Agency's duty to bargain either because they conflict with an Agency regulation for which a compelling need exists under section 7117(a)(2) of the Statute or because they involve the methods or means of performing work under section 7106(b)(1).

The Agency must negotiate upon request over the Union's proposals for the accommodation of employees who smoke, particularly proposals concerning the designation of smoking areas. Article 1, Section 2 merely allows smokers the benefit of whatever arrangements are negotiated between the parties regarding designated smoking areas. This in no way interferes with the exercise of management's right to discipline employees under section 7106(a)(2)(A) for violation of any applicable limitations on smoking, or, for that matter, any work rules established by the Agency. See Union's Petition for Review at 2.

Accordingly, we conclude that Article 1, Section 2 does not interfere with management's right to discipline and that it, along with the other proposals, is within the Agency's duty to bargain.

V. Order

The Agency must negotiate upon request (or as otherwise agreed to by the parties) concerning the Union's proposals.^(*)

APPENDIX

The proposals in 0-NG-1524 are essentially the same as the proposals in Case No. 0-NG-1536. The minor differences are irrelevant to the negotiability issues before us. The proposals in 0-NG-1524 and 0-NG-1536 are as follows:

Article 3, Designation of Smoking Areas

1. The Parties agree that the designated smoking areas shall be created to recognize the rights, needs, and concerns of all bargaining unit employees. The Parties further agree that smoking employees have the right to continue to smoke in convenient areas and without infringing upon the rights of non-smoking employees to be free from exposure to passive smoke.

2. Designated smoking lounges will be created in any building occupied by fifteen (15) or more smokers. There will be sufficient designated smoking areas to meet the needs of employees in each building.

3. Smoking areas and lounges, where appropriate, shall be convenient and accessible to employees.

4. Smoking areas will not interfere with the right of all employees to an environment free of all smoke.

5. The Employer agrees that:

A. Designated smoking areas and lounges willbe clearly marked with "Designated Smoking Area" signs and conveniently located. The Employer will post notices on all designated smoking areas. The Employer will distribute a notice to employees which includes a list of all designated smoking areas.

B. The designated smoking areas shall be properly ventilated, well lit, and equipped with smoke-less ashtrays (or other air purifiers) to ensure thatclean air is provided to all employees.

C. Designated smoking areas shall be furnished with chairs and smoke-less ashtrays. Further, designated smoking lounges will be properly furnished with chairs, tables, wastepaper baskets, smoke-less ashtrays, and a telephone to allow employees (with their supervisors' permission) to continue to work while away from their work site.

D. Designated smoking areas and lounges will be properly maintained and cleaned daily to ensure that the designated smoking areas and lounges remain a pleasant and comfortable area for all employees to use.

E. Managers will allow reasonable use by all employees of designated smoking areas.

6. Management will establish designated smoking areas for use as soon as possible and in no case later than ninety (90) days after the effective date ofthis agreement.

7. Smoking areas, lounges and private offices having no non-smokers will be designated in accordance with GS Smoking Regulations and Department Chapter 1-60, Policy on Smoking in HEW Occupied Buildings and Facilities (dated 1/18/78).

8. The cafeteria will be divided into smoking and non-smoking sections.

9. Because of their pervasive nature, pipe and cigar smoking will be totally banned.

[Paragraph 9 is not in dispute.]

Article 4, Role of Health and Safety Committee

3. The H&S Committee shall designate smoking areaspursuant to Article 3 of this agreement that will be sufficient to meet the needs of smoking bargaining unit employees.

Case No. 0-NG-1536 contains in addition the following disputed article.

Article 1, General Statement of Purpose and Policy

2. The Parties agree that the purpose of this agreement is to ensure that in the implementation or enforcement of a smoking policy the needs, rights, and concerns of all employees both smokers and non-smokers are recognized. The Employer agrees that employees may elect to smoke or not smoke without fear of penalty or reprisal.

The proposals in 0-NG-1545 are as follows:

A. Generally, smoking is prohibited except in designated smoking areas.

B. Smoking is not permitted in general office space, restrooms and stairways.

C. Designated Smoking Areas:

1. One room on each floor occupied by HHS will be designated as a smoking area and will be provided with air purification device(s) (clean air machines), when necessary to protect the non-smoker from involuntary exposure to smoke. [Footnote omitted.]

2. Corridors and Lobbies on floors occupied by HHS.

3. An employee who occupies a private officemay declare that office a smoking area provided the employee supplies an air purification device.

D. Within applicable regulations, employees will be provided reasonable duty time to attend Agency-sponsored training to assist in breaking the smoking habit.

[The Agency did not declare paragraph D to be nonnegotiable.]

E. Suitable signs will clearly identify designated smoking and nonsmoking areas.

F. In the event of a complaint by a non-smoker of insufficient protection against involuntary exposure, every effort will be made to adjust his/her environment, including allocating space in a different area, use of clear air machines, use of partitions, or any other device which may address the non-smoker's concern.

---

---

---

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

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

---