DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE MEMPHIS SERVICE CENTER MEMPHIS, TENNESSEE and CHAPTER 98, NATIONAL TREASURY EMPLOYEES UNION

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL



In the Matter of )

DEPARTMENT OF THE TREASURY )

INTERNAL REVENUE SERVICE )

MEMPHIS SERVICE CENTER )

MEMPHIS, TENNESSEE )

)

and ) Case No. 91 FSIP 45

)

CHAPTER 98, NATIONAL TREASURY )

EMPLOYEES UNION )

)

)



DECISION AND ORDER



Chapter 98, National Treasury Employees Union (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of the Treasury, Internal Revenue Service, Memphis Service Center, Memphis, Tennessee (Employer).



After investigation of the request for assistance, the Panel determined that the impasse should be resolved through written submissions from the parties, with the Panel to take whatever action it deemed appropriate to resolve the impasse concerning a smoking policy for the Memphis Service Center (MSC). Written submissions were made pursuant to this procedure and the Panel has now considered the entire record.1/



BACKGROUND



The Employer processes tax returns, issues refunds, and provides tax information to Federal taxpayers in Alabama, Arkansas, Louisiana, Mississippi, North Carolina, and Tennessee. The Union represents approximately 2,987 General Schedule employees who hold a broad range of positions, including tax examiner, transcriber, computer programmer, unit or control clerk, and secretary. They are part of a nationwide consolidated bargaining unit consisting of approximately 60,000 employees who are covered by a master labor agreement between.



1/ The Employer did not submit a rebuttal statement of position.

the Internal Revenue Service and the National Treasury Employees

Union, which is scheduled to expire on June 30, 1994.



The dispute arose during Union-initiated renegotiations of the existing MSC smoking policy, which has been in place since May 1987. Under its terms, smoking is permitted indoors, but only in the following designated areas: (1) 12 selected restrooms, (2) 2 canteens and hallways adjacent thereto, (3) the southwest corner of the cafeteria, and (4) a room in the (a) health unit, (b) warehouse office, and (c) supply office.2/ Employees also may smoke in outside atriums. In addition, the current policy provides for the Employer to sponsor ongoing smoking cessation classes, with employee participation being voluntary. In a Panel-requested survey conducted by the Employer with the consent of the Union, only 22 percent of employees polled indicated that they smoke.



ISSUE



The parties disagree over whether indoor-smoking areas in MSC buildings should be eliminated.



POSITIONS OF THE PARTIES



1. The Union's Position



The Union proposes that the current smoking policy, as outlined above, be maintained.3/ It argues that this policy is similar to those of the nine other service centers throughout the country, which "employ a similar number of bargaining-unit employees and are physically similar in size and layout."4/ Also, by restricting smoking to certain areas, employees would be protected from direct exposure to secondhand smoke while smokers would be provided with "conveniently located [indoor] areas" in which to smoke during their breaks. Thus, the policy 2/ The MSC facility is made up of three buildings: (1) a single-story building on Democrat Road where the majority of employees work;

(2) the annex; and (3) the warehouse.



3/ When it initiated negotiations over the smoking policy, however, the Union proposed, among other things, an increase in the number of designated-indoor-smoking areas.



4/ These centers are located in Kansas City, Ogden, Andover, Atlanta, Philadelphia, Austin, Cincinnati, Fresno, and Brookhaven. The Union submitted copies of each of their smoking policies.

would be consistent with the Federal guidelines set forth in 41 C.F.R. § 101-20.105-3 1990).5/ Moreover, it apparently has been satisfactory to smokers and nonsmokers alike. In this regard, the Employer failed to submit evidence that (1) employees have registered complaints about tobacco smoke in the workplace and associated illnesses, and (2) the indoor air quality at the

facility is poor.



The no-indoor-smoking policy proposed by the Employer is unreasonable and unnecessary because the MSC facility is not a "small closed office" but rather, a "cavernous, open space." Furthermore, requiring employees to use their breaks to go outdoors and be exposed to the elements just to smoke "would doubtlessly" lower productivity and morale, and tempt smokers to take breaks outside their scheduled time or for more than the allotted time.

Finally, each smoking dispute before the Panel should stand on its own merits;

therefore, it is irrelevant how the Panel has resolved other such disputes in the past.



2. The Employer's Position



Under the Employer's proposal (1) employees would be permitted to smoke outside at entrances and exits to MSC buildings and in the atriums only 6/; and (2) smokers who choose to stop would be (a) provided with two smoking cessation courses at no cost, the first on duty time and the second while on leave, and (b) allowed to take additional courses but at their own expense and while on leave.



The Employer points to the "mounting medical evidence ... that passive smoke can and does kill thousands of nonsmokers every year."2/ It argues that, given such evidence, "everything.



5/ Specifically, 41 C.F.R. § 101-20.105-3(a)(2) (1990), a Governmentwide regulation, provides that "smoking areas should be designated in Federal buildings which are convenient, do not negatively impact on worker productivity, and do not impinge on the health of those who do not smoke."



6/ The Employer submitted photographs of these outdoor areas as well as current designated-indoor-smoking areas.



7/ In support of this statement, the Employer offered various articles from newspapers, newsmagazines, periodicals, and Government publications including, "Indoor Facts No. 5, Environmental Tobacco Smoke," U.S. Environmental Protection



(Continued)

should be done that can be done" to remove tobacco smoke, that "killer in the midst of MSC," from the work environment. Simply limiting indoor smoking to the current designated areas would not eliminate the known hazards associated with passive smoke, because these areas are not separately ventilated to the outside and "smokeaters" installed therein are not completely effective in

eliminating smoke. Rather, tobacco smoke is recirculated throughout the MSC buildings. In this regard, the Panel has found that there is no practical ventilation system which can support indoor smoking and maintain a de minimus risk level for nonsmokers . 8/





As for outdoor accommodations for smokers, the entrances and exits to buildings and the atriums would provide them with "something much better than [a] 'modicum of protection from the elements."9/ Also, the limited smoking cessation program it has proposed "strikes a reasonable balance between what MSC can do to assist its employees and what employees can do for themselves"

and, therefore, is sufficient. In summary, its proposed policy is consistent with those ordered by the Panel in previous cases.







CONCLUSIONS



After considering the evidence and arguments presented, we find that the Employer's proposal provides a reasonable resolution to the impasse. In reaching this conclusion, we note that the many areas currently designated for smoking do not have separate air ventilation systems which exhaust tobacco smoke to the outside. rather tobacco smoke circulates.



(Continued)



Agency, Office of Air and Radiation, June 1989; and Crowley, Secondhand Smoke: Some Grim News, Newsweek, June 11, 1990, at 59.



8/ Department of Veterans Affairs. Veterans Health Services and Research Administration Washington, D.C. and National Veterans Administration Council. American Federation of Government Employees, AFL-CIO, Case No. 89 FSIP 198 (April 27, 1990), Panel Release No. 294.



9/ Department of Transportation. U.S. Coast Guard Yard. Curtis Bay. Maryland and Local 2317. American Federation of Government Employees. AFL-CIO, Case No. 90 FSIP 180 (October 24, 1990), Panel Release No. 300. throughout other areas of the MSC buildings. In light of the overwhelming scientific evidence that exposure to passive smoke poses a threat to the health of nonsmokers10/, it is reasonable to ban indoor smoking.



Furthermore, the needs of smokers would be adequately accommodated. In this regard, the (1) covered entrances and exits to the buildings designated for outdoor smoking would provide a reasonable amount of protection from inclement weather; (2) outdoor atriums would be available during more temperate weather; and (3) employees may use their breaks to go to those outside areas to smoke.11/ Finally, the smoking cessation program to be offered by the Employer will provide smokers with several opportunities to

attend smoking cessation classes, which should help them adjust to the total ban on indoor tobacco use.



ORDER



Pursuant to the authority vested in it by the Federal Service

Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of the proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:



The parties shall adopt the Employer's proposal.