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Helene M. Antel, Esq. 2702 Denali Street Anchorage, Alaska 99503-2779 (907) 272-6571 Attorney for Petitioners BEFORE THE ANCHORAGE MUNICIPAL EMPLOYEE RELATIONS BOARD A.P.D.E.A, INTERNATIONAL ) BROTHERHOOD OF ELECTRICAL ) WORKERS, LOCAL UNION 1547, ) CARPENTERS LOCAL 1281, ) MACHINISTS LOCAL 601, OPERATING ) ENGINEERS LOCAL 302, PLUMBERS AND STEAMFITTERS LOCAL 367, TEAMSTERS LOCAL 959, A.M.E.A., and PUBLIC EMPLOYEES LO~AL 71, Petitioners, MUNICIPALITY OF ANCHORAGE, Respondent. No. 87-3 (Smoking Ordinance Grievance) PETITIONER'S POST-HEARING BRIEF Petitioner Unions submit this brief in further support of their position that the Municipality of Anchorage's ("MOA") unilateral revocation of established on-the-job smoking privileges constituted an unfair labor practice and breach of contract remediable by Board action. The facts elicited in hearings before this Board speak as strongly as the legal arguments in support of the petitioners' case. T!1056-2596

I. FACTUAL BACKGROUND In the summer of 1986, officials of MOA engaged in an attempt to formulate a smoking policy consistent with Alaska law, AS 18.35.300, as amended 1984. Se__~e testimony of Dr. Rodman Wilson, August 5, 1987; Union Exhibit U-I. By September, a draft plan had been created based on "the policy of the Municipality that the preferences of smokers and nonsmokers ... be accommodated as equitably as possible in order to facilitate work, provide a comfortable work environment, and safeguard the health of employees." The draft plan sought such accommodation by, inter alia, providing for smoking lounges and some. smoking "offices and by recommending procedures for fair resolution of smoker/nonsmoker disagreements. MOA Exhibit M-2. On September 9, 1987, MOA's Labor Relations Manager, John Alexander, circulated the draft to each of the unions with a request for comments and suggestions. Id. Just weeks later, MOA suddenly abandoned this policy of equitable accommodation and its recognition of the need for union input. Instead, at a Labor Relations luncheon on October 24, 1987, Robert Smith mentioned that the Mayor of Anchorage intended to propose to the Assembly an ordinance ~ prohibiting smoking by anyone anywhere in municipal buildings. { Testimony of Phil Thingstad, Carpenters Local 1281; Jeff Wertz, ! Machinists. There was no longer room for negotiation or comment Thingstad voiced objections to Smith stating that he - 2 - TI1056-2597

would grieve the ordinance, but was met with the flat statement that .the ordinance would be a non-grievable product of management prerogative in the form of legislation. Four days after the Labor Relations luncheon, on October 28, 1987, Mayor Tony Knowles introduced his smoking ban ordinance. At no time prior to its introduction were copies of the ordinance provided to any municipal labor leader, nor was input or comment from the unions allowed by MOA. On December 9, 1986, the ordinance was adopted, providing, in pertinent part, that: [I]t shall be unlawful for a person to smoke a cigarette, cigar or pipe or to offer tobacco for sale in any indoor place of a building, structure or other real property which is owned, leased or otherwise used or operated by the municipality. AO No. 86-186, ~ IA. A copy of the ordinance is attached hereto as Exhibit "A". On January i, 1987, the smoking ban became effective in all municipal buildings except schools. The school district ban became effective on July i, 1987. On January 19, 1987, the Carpenters Local 1281 filed the grievance Mr. Thingstad had foreseen. Union Exhibit U-2(a). Without pause for considera- tions, MOA rejected the grievance on the grounds that the smoking ban "is a matter of law. TO negotiate anything contrary to law would be illegal." MOA refused to process the grievance to arbitration. Union Exhibit U-2(b). - 3 - T! 1056-2598

Following rejection of the Carpenters' grievance, petitioners filed the unfair labor practice charge that is currently before the Board. Both parties submitted preliminary briefs and presented evidence in a hearing held on AUgUSt 4, 5 and 14, 1987. This brief expands upon the arguments initially presented in petitioner's Prehearing Brief which is here incorporated here by reference. II. ARGUMENT A. Smoking Practices Are Terms And Conditions Of Emplo[ment..Sgbject To Mandatory Collective Bar@aiqin~ Under established precedent, workplace smoking is undeniably a "term and condition of employment." Indeed, MOA concedes that "the NLRB decisions are across the board on this issue." MOA Prehearing brie=~ at 2. That is correct; it is also true that other state and local tribunals have found smoking to be a mandatory subject of bargaining. Se___~e S.S. Kresge Co. v. NLRB, 416 F.-2d 1125, 1129-30 (6th Cir. 1969); Gallencamp Stores Co. v. NLRB, 402 F.2d 525 (9th Cir. 1968); Butcher Bo[ Refri@erator Door Co. v. NLRB, 29h F.2d 22 (7th Cir. 1961); Chemtronics, Inc., 236 NLRB No. 21, 98 LRRM 1559 (1978); Albert's Inc., 213 NLRB 686, 693 (1974); Commonwealth v. Pennsylvania Labor Relations Board, 459 A.2d 452, 455 (1983); Professional and Technical Health Care Union, Local 113, SEIH, and Group Health, Inc., FMCS No. 86/27512. The lead cases are discussed at greater length in Petitioners' Preheating Brief at - 4 - T! 1056-2599

5-7. Professional and Technical Health Care is attached hereto as Exhibit MOA also acknowledges that NLRB decisions are the "normal source" for interpreting the i~hrase, "terms and conditions of employment." M0A Brief at ~. Nevertheless, MOA would have this Board depart from the NLRB "s decisions on the ground] that such private sector precedent should not govern public employment cases. This proposit ion is manifestly contrary to the Alaska Supreme Court's practice. In fact, the two labor relations cases in which the Court held NLRB case law to be "highly relevant" concerned the public sector. Alaska Community Colle@es Federation of Teachers , Local No. 2404 v. University of Alaska, 669 P.2d 1299, 1302 n.l (1983); Alaska Public Employees Association, Inc. v. Municipality o..f Anchorag_e, 555 P.2d 552, 553 (1976). Despite the great weight of precedent, then, MOA argues that "terms a~d conditions of emplo~zment" should here be narrowly construed to exempt MOA from its duty to bargain fairly. MOA asserts, without explanat ion, that workplace smoking is a matter of "public policy" not subject to resolution at the bargaining table. The cases cited by MOA note With some acerbity that mere invocation of the term "policy" . . . "is not helpful. " Kenai Peninsula Bo..~rpugh School District v. Education Associatiom., 572 P. 2d 416, 422 - 5 - Kenai Peninsula (1977) ; ~lational nl o56-26oo

Education Association of Shawness Mission, .Inc. v. Board of Education, 512 P.2d 426, 435 (1973). Rather, those courts engaged in a balancing analysis, weighing the disputed rule's impact on the employees against its impact on 'the professional goals and methods" of the governmental agency concerned. Kenai, supra, 572 P.2d at 422. This form of analysis is in accordance with the United States Supreme Court's decision in Abood v. Detroit Board of Education, 431 U.S. 209 (1977). As MOA's brief notes, in Abood the Court extrapolated in dictum on the difference between public and private sector bargaining. What MOA fails to note, however, is that in deciding the constitutionality of a union "service charge" imposed on non-union public employees, the Court forcefully reaffirmed the importance of the union's function in the public sector. Abood holds that all public employees may be required to fund the union's activities in the spheres of "collective bargaining, contract administration and grievance-adjustment." Abood, supra, 431 U.S. at 232. The majority rejected the argument that public employees' collective bargaining is so unalloyedly "political" as to infect all union activity with public policy implications requiring limitation of the union's traditional role. Id. at 229-232. The only limitation placed on the service charge was that the sums paid by dissenting employees could not be used to fund such plainly "political" activities as - 6 - TI10E:~2601

II legislative lobbying or support of candidates for office. Id. • ~ at 235. The evidence adduced at the hearing in this matter demonstrated that the smoking ban's primary impact is, and is intended to be, on the working environment of municipal employees, not on the public or the ~unctioning of city government. Indeed, MOA's instructions to municipal supervisors required that employee smokers be disciplined under the personnel rules by oral and written reprimand, suspension or dismissal. By contrast, members of .the public are to be advised that it is the state law no-smoking signs that require them to put out their cigarettes, not MOA's ordinance. Union Exhibit U-3. This evidence that the no-smoking ordinance is directed at employees rather than the general public was confirmed by Alan Kraft, president of A.P.D.E.A. Mr. Kraft testified that police had been instructe4 not to enforce the ordinance against members of the public. In fact, MOA has offered no evidence at all to show that the no-smoking policy was designed to impact the governmental functions of the effected agencies. Against this background, it is apparent that MOA's no-smoking ordinance is, in reality, a regulation of employee conduct and discipline, that has substantially affected union members' working environments and even tenure of their jobs. :. Accordingly, the no-smoking rule is a mandatory subject of ~i• bargaining under both the facts of this case as well as - 7 - Ti105~2602

established judicial precedent. To the extent, if any, that "public" policy may impinge on the issue, it is incidental and thereby insufficient to outweigh employee rights and interests. There was no overriding "public" policy at stake that justified MOA's removal of the issue from its proper place as a subject for negotiation, rather than employer fiat. B. MOA's Violation Of Its Duty To Bargain In Good Faith Is An Unfair Labor Practice And Breach Of Contract Two legal conclusions arise out of MOA's circumvention of its duty to negotiate changes in workplace smoking rules. First, the failure to bargain constitutes an unfair labor practice. Second, unilateral revocation of employees' smoking privileges violates the recognition and the health and safety clauses of the collective bargaining agreements under review. i. Circumventing negotiation by ordinance was an unfair labor practice not excused by waiver or as a matter of law This unfair labor practice charge is governed by the Anchorage Municipal Code: A. The municipality of its agents may not ... refuse to bargain collectively in good faith over wages, hours and other terms and conditions with the organization which is the exclusive representative of employees in an appropriate unit, including but not limited to the discussion of grievances with the exclusive representative. AMC 3.710.140 (emphasis supplied). - 8 - T11056-2603

MOA's persistent failure to bargain in good faith is an unfair labor practice manifest in its continued obdurate failure to bargain and in at least three distinct incidents: (i) its bad faith, unilateral reversal of the September, 1986 attempt to agree on an equitable policy on smoking regulation with petitioner unions. Se.__~e the testimony of Emaline French that the only smoking policy draft circulated to petitioners for comments and suggestions was a September 9, 1986 draft that addressed state law and provided for accommodation of smokers in various areas of municipal buildings. Exhibit M-2. See also the testimony of Messrs. Thingstad, Wertz, and Kraft that it was only at the October 24, 1986 Labor Relations luncheon that they got their first inkling a total smoking ban was proposed; (2) the hasty resort to the Assembly action with respect to a no-smoking proposal that was never presented to the petitioners and was passed over at least one petitioner's representative's protest. See testimony of M~. Thingstad who told Robert Smith, the Mayor's representative at the October 24, 1886 luncheon, that unilateral action would violate the parties' contracts; and (3) the January 20, 1987 refusal to pursue good faith discussions of the Carpenters January 19, 1987 grievance. See Union Exhibits U-2(a) and (b). See also M[. Thingstad's testimony that, in his experience, outright rejection of a grievance was unprecedented. - 9 -

The.evidence in this case clearly establishes that MOA was aware of the petitioner's desire to participate in developing a municipal smoking policy at least as early as July, 1986 when John Marton, MOA Labor Relations Specialist, and Barbara Huff, president of AMEA, exchanged correspondence regarding a grievance and request to arbitrate the then imminent smoking policy. In the course of that correspondence, Marion promised, "Prior to any such policy being finalized and implemented, all labor organizations affected by this policy will be asked to comment on such proposed policy." Union Exhibit U-l(c). And so they were by letters dated September 9, 1986. See MOA Exhibit M-2. Whether or not the September correspondence would have led to a negotiated or informally agreed upon policy on work place smoking will never be known. MOA suddenly turned its back on the endeavor and proposed to the Asse[~bly a total smoking ban altogether different from the September draft, created without the knowledge or participation of the petitioners. With this history, it is factuous for MOA to argue that the petitioners waived their rights by failing to request negotiations. Petitioners' did not know there was a proposed smoking ban to negotiate until it was too late. They had been effectively lulled by MOA's September draft and request for comments. MOA Labor Specialist Emaline French acknowledged that, unlike the earlier policy draft, the proposed smoking ban T! 1056-2605