DEPARTMENT OF THE NAVY NAVAL SURFACE WARFARE CENTER WHITE OAKS SILVER SPRING, MARYLAND and LOCAL 1, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE NAVY
NAVAL SURFACE WARFARE CENTER
SILVER SPRING, MARYLAND
LOCAL 1, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES,
Case No. 90 FSIP 126
DECISION AND ORDER
Local 1, American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of the Navy, Naval Surface Warfare Center, White Oaks, Silver Spring, Maryland (Employer).
The Panel determined that the impasse should be resolved pursuant to written submissions from the parties with the Panel to take whatever action it deemed appropriate to resolve the impasse. Submissions were made pursuant to these procedures and the Panel has considered the entire record.
The Employer's primary mission is to research and develop explosive surface weapons. The bargaining unit consists of approximately 650 employees who work in jobs such as explosives technician, engineering technician, and program and budget analyst. This dispute, however, affects only those employees who work in the Employer's physical security office. The parties recently negotiated a successor collective bargaining agreement which was awaiting agency head review at the time of the Panel's initial investigation of this case.
ISSUE AT IMPASSE
The sole issue in dispute is whether smoking should be permitted between the hours of 5 p.m. and 6 a.m. in the offices of the Physical Security Division.
1. The Union's Position
The Union proposes that smoking be permitted in the offices of the Physical Security Division between the hours of 5 p.m. and 6 a.m. The past practice has been to allow smoking "as desired." When a newly-assigned security supervisor recently announced that she intended to prohibit smoking entirely, the Union proposed that smoking continue to be permitted, but only during the 5 p.m. to 6 a.m. time period. Its proposal is reasonable because during this time " normally one man is the only presence in the office[s] n and "the impact on other workers is negligible to nonexistent. n In addition, employees who work during these hours spend only 50 to 60 percent of their duty time in the security offices. A 14,000 BTU air conditioner, which is vented to outside, should ensure that the ill effects of sidestream and second-hand tobacco smoke on nonsmokers are minimal. Finally, the Union believes that the only reason that the supervisor proposed to disallow smoking is her personal dislike of the habit, and her wish to discipline "which she threatens daily.
2. The Employer's Position
The Employer essentially proposes that smoking "not be permitted at any time in the offices of the Physical Security Division." Its proposal is consistent with the activity's instruction providing employees a work environment "reasonably free" of tobacco contaminants. In this regard, the Employer's Safety Division concluded that smoking should not be permitted in the area because the American National Standards Institute's (ANSI) recommended air exchange standards could not be met with the offices' air conditioner and the building's main ventilation system. Moreover, recently announced preliminary findings of the Environmental Protection Agency (EPA) suggest that "passive smoke causes as many as 3,800 lung cancer deaths each year in the United States" and "other respiratory symptoms are linked to passive smoking.
While the Union maintains that its proposal effectively would isolate smokers, and reasonably minimize the effects of residual or second-hand smoke on other employees and the public, such is not the case. A number of other employees "may frequent" the offices during the hours specified in the Union's proposal, and nonsmokers have complained that smoke is still present in the offices during the normal workday. The employees who would be affected by the smoking ban, on the other hand, perform "at least 75 percent of their duties outside" the security offices, and could easily avail themselves of designated smoking and outdoor areas. Finally, in addition to the building's indoor designated-smoking area and an outdoor smoking area only 50 feet from the physical security offices, both of which are easily accessible to smokers, "the activity is willing to designate an additional indoor smoking area which will be located approximately 240 feet" from the offices in question.
Having considered the evidence and arguments in this case, we conclude that this dispute should be resolved on the basis of the Employer's proposal. In our view, it has clearly demonstrated that the past practice of permitting smoking as desired in the security offices should be changed. In this regard, the Employer's Safety Division has concluded that the offices' ventilation systems are incapable of attaining ANSI's recommended air exchange standards and that smoking, therefore, should not be permitted. While the Union's proposal attempts to minimize the harmful affects of second-hand and sidestream tobacco smoke, we do not believe that restricting the hours during which smoking would be permitted would sufficiently protect the health of nonsmokers. This conclusion comports with the recommendations of the Surgeon General of the United States(1) and the EPA(2) that smoking should be restricted to separately ventilated areas or eliminated from buildings entirely.
As the Panel has stated elsewhere,(3) for those who choose to smoke, there should be some accommodation. In this regard, we note that the Employer has offered to designate an additional indoor smoking area in relatively close proximity to the physical security offices. We are persuaded that, in conjunction with those smoking areas which already exist inside and outside the building, the needs of employees in the Physical Security Division who choose to smoke should be adequately met.
Pursuant to the authority vested in it by section 7119 of the Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to sect