DEPARTMENT OF THE AIR FORCE K.I. SAWYER AIR FORCE BASE K.I. SAWYER AFB, MICHIGAN and LOCAL 1256, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE AIR FORCE
K.I. SAWYER AIR FORCE BASE
K.I. SAWYER AFB, MICHIGAN
LOCAL 1256, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
Case No. 90 FSIP 143
DECISION AND ORDER
Local 1256, National Federation of Federal Employees (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 Air Force, K.I. Sawyer Air Force Base, K.I. Sawyer AFB, Michigan (Employer).
The Panel determined that the impasse should be resolved on the basis of 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.(1)
The Employer, which is part of the Strategic Air Command, maintains flight preparedness for two squadrons of B-52 and KC-135 aircraft. The Union represents two bargaining units, one consisting of approximately 350 General Schedule and Wage Grade employees who hold positions in the trades and crafts and in accounting and engineering, and a second bargaining unit of approximately 200 nonappropriated-fund employees who work in the clubs, cafeteria, recreational, and service facilities the base. The parties have entered into a collective-bargaining agreement which is in effect until May 14, 1992.
ISSUES AT IMPASSE
The parties disagree over the base smoking policy which was implemented by the Employer in January 1990. The Employer also raises a threshold question concerning its obligation to bargain over the matter.
I. The Jurisdictional Question
The Parties' Contentions
The Employer contends that the Panel should decline jurisdiction. Essentially, it takes the position that it has no obligation to negotiate over a smoking policy because the Union previously waived its right to bargain over the matter. In this regard, the Union refused to bargain over the proposed change when notice was provided by the Employer.
The Union urges the Panel to retain jurisdiction and resolve the dispute on the merits. Although the Union previously contended that it had no duty to bargain over a smoking policy because of the existence of a pre-existing agreement between the parties on smoking, it now has abandoned that claim. There has been no waiver by the Union of any bargaining right concerning a smoking policy and its position during negotiations and mediation to maintain the status quo should not be construed as one.
In considering duty-to-bargain questions raised by the parties, the Authority has stated that the Panel is to be guided by applicable Authority precedent. Commander, Carswell Air Force Base, Texas and American Federation of Government Employees Local 1364, 31 FLRA 620 (1988). On the issue of waiver of statutory rights to bargain over conditions of employment, the Authority has held that a waiver of such a right must be "clear and unmistakable." Department of the Air Force Scott Air Force Base; Illinois and National Association of Government Employees, Local R7-23, 5 FLRA 9, 11 (1981). Furthermore, the Authority has held that a waiver may be established by either (1) express agreement, or (2) bargaining history. Internal Revenue Service and National Treasury Employees Union, 29 FLRA 162, 166 (1987).
In applying applicable Authority case law to the question of whether the Union has waived its right to bargain over a smoking policy, we find based upon the record before us, that there is no evidence that the Union clearly and unmistakably waived its right to bargain through either an express agreement or bargaining history. Rather, the Union merely took a position during negotiations and mediation that the then-existing smoking policy should be retained. In our view, an argument to maintain the status quo with respect to a condition of employment is not tantamount to abandoning a right to bargain. Accordingly, the matter is properly before the Panel and we shall proceed to address the issue on the merits.
II. Smoking Policy
a. The Employer's Position
Under the Employer's proposal, smoking would not be permitted in any building except the following: designated smoking areas in the NCO open Mess; Officers' Open Mess; the Bowling Center; and military family housing(2) and dormitory rooms only with the occupant's permission. Additionally, within mission requirements, employees wishing to enroll in the base's smoking cessation classes during duty hours would be excused without charge to leave.
The Employer contends that restricting smoking to only a few designated areas would help minimize the harmful effects of second-hand tobacco smoke on nonsmokers. Smoking in Government housing should not be prohibited since occupants should have at least some degree of freedom of choice concerning smoking in their living quarters. Moreover, dormitory rooms each have outside ventilation via an exhaust fan in the bathroom and all have exterior windows which open. The Bowling Center, Officers' Open Mess, and the NCO Open Mess have large ventilation/exhaust systems in the kitchen areas that allow for a complete change of air each hour. The Bowling Center also is equipped with an air purification system to help eliminate smoke, and the NCO Open Mess has a large air conditioning system which draws in outside air as required.
Since military personnel already are required to abide by a smoking policy which is the same as the one proposed by the Employer, adopting the proposal would establish a uniform base-wide plan; thus, having the same restrictions for both civilians and military would tend to minimize any resentment between them. The smoking policy proposed by the Employer has been in effect for over 1 year, and employees have become accustomed to it, as well as having to smoke outside during winter. There have been "no apparent serious problems from smoking outdoors" even in Michigan's Upper Peninsula. To help minimize their inconvenience, employees are authorized reasonable periods of time to smoke outdoors. Smoking cessation courses offered to employees while in a duty status may help smokers make the transition to an environment where smoking is restricted.
Finally, with respect to providing designated outdoor smoking areas which would protect employees from the elements, as the Union proposes, the Employer estimates that the cost of construction would be prohibitive, $165,000.
b. The Union's Position
The Union would ban smoking from all buildings, but require the Employer to designate outdoor smoking areas that are reasonably accessible to employees, and provide protection from the elements, that is, rain, snow, high winds, and below freezing temperatures. Employees also would be authorized a reasonable amount of time to smoke.
It argues that because of the severity of the winter in Northern Michigan, it is only reasonable and humane to provide outdoor designated-smoking areas which offer protection from the elements. Doing so would show some compassion for those with a physical addiction. Furthermore, restricting smoking to the outdoors is consistent with the goal of promoting the health and well being of all employees. The Employer's proposal, on the other hand, would set a double standard; that is, it would permit smoking on the "recreational side" of the base, but prohibit it in most work areas.
After considering the evidence and arguments on the issue, we conclude that the parties should resolve their dispute on the basis of the Employer's proposal. In essence, it would permit smoking in certain recreational facilities and living quarters which appear to be ventilated so as to minimize the adverse effects of second-hand tobacco smoke in the indoor environment. In this regard, the evidence reveals that dormitory rooms are equipped with exhaust fans which vent to the outside, and the Bowling Center, NCO Open Mess, and Officers' Open Mess have large ventilation/exhaust systems which allow for a complete change of air each hour. We conclude, therefore, that allowing smoking in those areas designated by the Employer should have a diminished effect on the health of nonsmokers given the amount of ventilation there. Although the Union's more restrictive proposal, providing for a total ban on indoor smoking, would conclusively eliminate passive tobacco smoke, we find that a total ban on smoking may not be necessary in circumstances such as these when designated-smoking areas are equipped with ventilation systems which allow indoor air to vent directly to the outside or provide complete air changes every hour. Furthermore, we note that smoking is restricted to certain recreational facilities and living quarters where most employees are not required to go.
With respect to that aspect of the Union's proposal which would require the designation of outdoor smoking areas which provide protection from the elements, the estimated cost of construction of facilities designed to protect employees from rain, snow, high winds, and below freezing temperatures would be prohibititive.(3) Thus, we find that the cost to construct or modify designated-smoking areas which meet the specifications of the Union's proposal outweighs the benefits of allowing employees to smoke in areas protected from the elements.
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 the proceedings instituted under section 2471.6(a)(2) of the Panel's regulations, the Federal Service Impasses Panel under section 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Employer's proposal.
By direction of the Panel.
Linda A. Lafferty
February 15, 1991
1. The parties' exchange of written submissions reveals that they have voluntarily resolved one aspect of their dispute, that there shall be no smoking in any Government vehicle assigned to K.I. Sawyer Air Force Base.
2. The record does not reveal whether there are any civilian employees residing in these facilities.
3. In resolving similar disputes concerning outdoor designated-smoking areas, the Panel has never ordered the construction or modification of a structure that would provide protection from the elements to the degree sought by the Union, unless the accommodation was offered by the employer. See Department of the Air Force. Scott Air Force Base, Scott Air Force Base. Illinois and Local R7-23 National Association of Government Employees, Case No. 89 FSIP 163 (January 11, 1990), Panel Release No. 289; Department of the Air Force. MacDill Air Force Base. MacDill