Department of Transportation Federal Aviation Administration Washington, D.C. and National Air Traffic Controllers Association

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL





In the Matter of )

)

Department of Transportation )

Federal Aviation Administration )

Washington, D.C. )

)

and ) Case No. 91 FSIP 80

)

National Air Traffic Controllers )

Association )

)



DECISION AND ORDER



The National Air Traffic Controllers Association (Union or NATCA) 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 Transportation, Federal Aviation Administration, Washington, D.C. (Employer or FAA).



The Panel determined that the parties' dispute concerning smoking in the workplace 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. Additionally, a representative of the Panel conducted site visits with the parties to three facilities, National Airport in Washington, D.C.; Dulles Airport in suburban Northern Virginia; and the Washington Air Route Traffic Control Center in Leesburg, Virginia. The Panel has now considered the entire record in this case, including a report by its representative concerning the site visits.



BACKGROUND



The Employer is responsible for the conduct and regulation of the nation's air traffic. It maintains some 450 to 500 air traffic control towers, and ground-based terminals and centers nationwide. The Union represents a nationwide bargaining unit consisting of approximately 17,000 General Schedule employees who work as air traffic controllers. The parties have entered into a master collective-bargaining agreement which is in effect until May 1992.



This dispute which potentially affects all employees arose in August 1990, when the Employer notified the Union of its intent to issue Department of Transportation (DOT) Order 3900.47, which would implement a new smoking policy in all space occupied and controlled by it.



By way of background, there are 17,490 airports in the U.S. This number includes civilian and joint civilian/military airports, heliports, and seaplane bases in the U.S. and its territories. of this number, 5,589 are public-use airports, while 11,901 are used privately. The FAA operates three types of airport support facilities: (1) Air Traffic Control Towers (ATCT); (2) Terminal Radar Approach Control facilities (TRACON); and (3) Air Route Traffic Control Centers (ARTCC). Bargaining-unit employees are stationed at all three types of facilities.



An ATCT is established on an airport's premises to provide air traffic control service on, and in the vicinity of, that airport. There are 403 airports with towers in the U.S. The mission of TRACONs, usually collocated with an ATCT or ARTCC, is to control approaches, i.e., arrivals and departures. When a plane enters the space controlled by the TRACON, it guides the plane to the airport's runway for landing. Similarly, when planes approach for departure, the TRACON functions to guide them into the air and monitors them until picked up by one of 22 ARTCCs nationwide. Those

are ground-based, freestanding facilities usually located in remote

suburban areas. Their primary mission is to provide direct or indirect support to the control of air traffic by monitoring planes through the use of radar equipment. Each one is responsible for monitoring airspace activity that may span several states.



Airport facilities are classified into five main categories designated by an activity-level number I through V. The level of classification is determined by the quantity and type of air traffic controlled, as well as the design of the facility and amount of radar activity. Most are Level IV or lower; however, Level II facilities are most common.



ATCTs and TRACONs have three basic components: (1) control cab or cab, (2) tower shaft or shaft, and (3) base building. The cab is the primary operating space in the control tower. It must be elevated above ground level and physically oriented relative to the primary runways, so as to obtain the best unobstructed view of the aircraft primary movement areas, i.e., taxiways and runways. The tower shaft has two primary functions. First, it supports the raised cab at the desired elevation above ground level and provides for access to the cab via a stairway and/or elevator. A secondary function of the shaft also may be to house ATCT functional space.

Tower shafts can be structurally independent (freestanding), or an integral part of another related structure, such as a terminal building or base building. The base building is a single- or multiple-story building adjacent to the tower shaft which provides functional space. When the base building is structurally independent, it is usually attached to the tower shaft with an access corridor or link. Since ARTCCs are not located at airports, they are all freestanding structures.



The three components of the ATCT/TRACON can be combined in various ways to design a facility with one of three basic configurations which are: (1) freestanding functional shaft; (2) base building and functional shaft; and (3) base building and nonfunctional shaft. The freestanding functional shaft is the most fundamental configuration, consisting of a cab on top of a shaft, which utilizes the shaft for functional space. It is the basic configuration of most low activity designs. A base building and functional shaft is a basic configuration consisting of a cab on a shaft with a base building. This configuration utilizes space in both the shaft and base building for functional space. The base building and nonfunctionl shaft has a cab on a shaft with a base building. It differs from the two previous configurations in that the shaft is not utilized for functional space except for minimal amounts of mechanical and electronic equipment. Support personnel are not housed there.



Elevators are required in all air traffic control facilities where cab elevation is at least 49 feet above ground elevation.1/ While there is no general method governing level designations with respect to the height of towers, Level I and II facilities are generally 3- to 4-stories-high and not equipped with elevators.



1/ Facilities constructed prior to March 30, 1988, the effective date of this rule, may not be equipped with elevators.





For energy conservation, ventilation in most air conditioned spaces is held to the minimum standards. Generally, buildings with 3,000 square feet or more of air conditioned space should have systems which provide continuous air movement. For buildings with less than 3,000 square feet of air conditioned space, room-size HVAC units are used. Although smoking is not permitted in the ATCT or TRACON, it is permitted in the break rooms proximate to these areas.



ISSUES AT IMPASSE



The parties disagree over the criteria for allowing smoking in air traffic control facilities, whether there should be outside-designated smoking areas, which employees may take smoking cessation courses, and the date the smoking policy should be implemented.



1. The Employer's Position



The Employer proposes the following:



This agreement contains the full and complete understanding of the parties of the provisions and procedures agreed to for the implementation of Order 3900.47 (Smoking Restrictions in FAA-Controlled or Occupied Space). To ensure that the needs, rights and concerns of all unit employees, both smokers and non-smokers are recognized, the parties agree to the following:



1. Smoking is prohibited in all buildings and facilities controlled or occupied by the FAA, except in properly ventilated and separated areas designated by management as smoking areas.



2. A properly ventilated and separated area is one that is physically separated from non-smoking areas by enclosed walls and

doors. It must have a ventilation system that vents tobacco smoke

to the outside so as not to enter non-smoking areas. It also must

not be an area employees are required to use.



3. If a properly ventilated and separated area exists, or if a properly ventilated area can be separated by making minor modifications within funding limitations, it may be designated as

a smoking area if management determines it is appropriate.



4. If a properly ventilated and separated space is not available

or cannot be made available in accordance with section 3 above, management shall designate outside smoking areas wherever feasible.



5. The parties recognize that there are some facilities where physical and/or operational constraints prevent the designation of either indoor or outdoor smoking areas. To lessen the impact of the resultant prohibition of smoking, the Employer agrees not to implement the new smoking restrictions at these facilities until 60 days after the effective date of this agreement. During this period, employees who smoke will be afforded an additional opportunity to adjust to these new restrictions and, if desired, attend agency recognized smoking reduction programs within the commuting area. Any grant of official time is subject to operational requirements.



The Employer contends that its proposed smoking policy would help effectuate the recommendations of the U.S. Surgeon General who has identified environmental tobacco smoke as a health hazard.2/ In this regard, the proposal seeks to implement the widest possible restrictions on smoking in FAA-controlled or occupied space or facilities to curtail the adverse effects of passive smoke.



Because the proposal defines the term "properly ventilated and

separated area," ambiguity as to its meaning should be reduced thus helping to avoid grievances over its interpretation. Current indoor smoking areas would have to meet strict criteria if they are to be retained, which is consistent with the Panel's "philosophy" on smoking in the workplace. The Employer acknowledges, however, that it is



2/ See The Health Consequences of Involuntary Smoke A Resort of the Surgeon General, DHHS Pub. No. (CDC) 87-8398 (1986). U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control, Center for Health Promotion and Education, Office of Smoking and Health.





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unlikely that any current indoor designated-smoking areas would be retained under its proposal since they would not meet the new criteria. In this regard, the Employer states that in order to assure and maintain the integrity of the policy it is necessary to define, structure, and isolate a designated smoking area to, as nearly as possible, remove and prevent tobacco smoke from contaminating work areas. This admittedly stringent isolation requirement, though necessary to create and maintain a smoke-free working environment, renders all current smoking arrangements within FAA buildings and facilities unacceptable. All of the currently designated smoking areas which are in FAA buildings are either improperly vented and separated or are areas that employees are required to use for other purposes.



Although the Employer is willing to make "minor modifications within funding limitations" to separate "properly ventilated areas from the general work environment by the construction of walls and doors," the Employer has no intention of making major expenditures of funds to accommodate smoking indoors.



According to the Employer, although "there are no facilities that currently meet the standards (which its proposal would set) for an inside smoking area where NATCA bargaining-unit members are assigned," it is willing to designate outdoor smoking areas "when feasible." The 22 single-level ARTCC facilities where more than half of the controllers are stationed are equipped with outside public address or paging systems which would allow for the immediate recall of employees who may be outside on a smoking break. However, it is unlikely that designated outside smoking areas would be "feasible" at other facilities. Since "air traffic

controllers are subject to immediate recall at any time during their assigned shift" this necessarily "puts restrictions on controllers' mobility while on a duty shift." The Employer states that air traffic control towers are not single-level structures and they do not necessarily have readily accessible outside entrances or paging systems; therefore, the designation of an outside smoking area is not a viable alternative. The Dulles Airport air traffic control facility, for example, is entered through the terminal area by a series of security doors and an elevator to the operation area

on the 12th floor level. Even with a paging system, timely return to the operational area would be impractical.



The logistical problem of leaving the facility to smoke is even

further complicated when the tower facility is built on or adjacent to an airport terminal with its own smoking restrictions. Designation of smoking areas in these instances is not possible.



Implementation of the new smoking policy would take place 30 days after execution of the agreement during which time management "would designate outside smoking areas (designation of inside areas is possible but highly improbable.) n In locations where smoking would be banned both indoors and outdoors, controllers would have the benefit of attending smoking cessation programs to ease the transition to a smoke-free workplace, thereby helping to mitigate the effect of a complete prohibition against smoking. At these facilities, employees would have an additional 60 days to take advantage of smoking cessation programs before the new policy would be implemented. Thus, at those facilities only, there would be a 90-day period before implementation of the new smoking restrictions

Finally, the Employer maintains that its proposal is consistent with Article 53, section 2, of the parties' term agreement which requires the Employer to evaluate air quality in its efforts to '"provide and maintain safe and healthful working conditions." Furthermore, it is in accordance with General Services Administration (GSA) regulations which give agency heads the right to establish more stringent policies than those in the regulations.3/ Since most areas which would be affected are those commonly used by both smokers and nonsmokers, the only way to protect nonsmokers is to ban smoking in common areas.



2. The Union's Position



The Union proposes the following:



This agreement represents the final and binding resolution of any impact-and-implementation bargaining on the Federal Aviation Administration no-smoking policy.



3/ 41 C.F.R. 101-20.105-3 (1990).





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Section 1: The parties agree that the issue of whether employees

are allowed to smoke in a given air traffic control facility would

be most effectively decided on a site-specific basis.



Section 2: The parties recognize that local agreements have been reached and currently exist in FAA facilities on smoking. The parties agree that existing policies on smoking shall remain status quo for all bargaining-unit employees.



The parties further agree that in no event shall the smoking policy for bargaining-unit employees be more restrictive than the existing General Services Administration Guidelines on Smoking in Federal Buildings.



Section 3: The Agency shall endeavor to provide at no cost to employees smoking cessation programs to all bargaining-unit members who request to participate. Where such programs cannot be obtained at no cost, the Agency will bear the expense of such programs to the extent that available funds permit. Participation in such programs shall be on a voluntary basis.



With respect to implementation, the Union proposes that the smoking policy should become effective at each facility upon completion of a smoking cessation program by all interested employees stationed there.



In support of its position that smoking policy should be negotiated at each facility, the Union argues that the approximately 500 air traffic controI facilities where bargaining-unit employees are assigned vary widely in terms of size, structure, location, number of employees, and accessibility to the outdoors so as to preclude setting one standard policy for all sites. To illustrate, it contrasts the 22 ARTCCs, which "are

normally no more than two stories in height with sufficient access to the outside and generally contain a considerable amount of segregated space used for administrative offices and other types of work not directly associated with the actual separation of live air traffic", with the control towers which have significantly diverse configurations. For example, at the 13-story Dulles Airport tower, whose elevators will soon be temporarily out of service, should smoking be limited to outside the tower only, "even without tower elevators going out of service, getting to and from the tower would add a minimum of 10 minutes to what is sometimes a 10-minute break during busy periods."



Furthermore, since controllers are subject to recall from their breaks at any time, those who are relegated to smoking outside the facility may have difficulty doing 50 if there is no paging system to recall them from breaks in exigent situations. The Union notes that some air traffic control facilities are located in nonsmoking airports. Therefore, win order to accommodate those employees who smoke, the Agency's proposal would require them to descend from the Tower and exit the airport itself to an area which is not protected from the elements or considered FAA property," thus adding to the length of time it would take smokers to go to and from a smoking area.



Another situation which points up the problem of establishing a single smoking policy for all facilities is that of the "single journeyman midshifts." In this regard, the Union contends that in a majority of the smaller terminals, the FAA has a practice of scheduling only one person in a tower from the hours of midnight to 8 a.m. As a result, the individual who is scheduled would have no opportunity to leave his/her duty location in order to comply with any further restrictions on smoking. As a result, this would create significant enforcement problems, particularly, in those cases where the tower does not meet the newly developed Agency standard.



Although the Union maintains that the current arrangements and/or negotiated local agreements on smoking at the various facilities should be retained, it is prepared to bargain over the matter on a site-by-site basis. It denies that doing so would lead to numerous impasses requiring the assistance of the Panel.



According to the Union, the opportunity to take smoking cessation courses should be afforded all employees, and not merely those assigned to facilities where there is a total indoor and outdoor ban on smoking as the Employer proposes. With respect to implementation, the smoking policy should become effective at each facility upon completion of a smoking cessation program by all interested employees stationed there. In conclusion, the Union argues that the Employer's proposal provides no adequate accommodation for smokers in light of its apparent plan to prohibit smoking indoors and, at some facilities. ban it outdoors as well.



CONCLUSIONS



Having considered the evidence and arguments, we conclude that neither

party's proposal provides an equitable solution to the issue of smoking at

FAA-controlled and/or -occupied facilities where air traffic controllers

are stationed. Given the wide variety of facilities in which employees

work, we find it difficult to formulate a single smoking policy for some

450 to 500 facilities to protect adequately nonsmokers from the hazards of

environmental tobacco smoke while still accommodating smokers. The Employer

concedes that it is unlikely that any current facility would meet the

criteria it proposes for allowing smoking indoors. Furthermore, smoking

outside the facilities would be permitted only when "feasible." In this

regard, the Employer contemplates that outside designated-smoking areas may

be feasible for the 22 ARTCs because their low elevation would allow quick

recall of controllers who may be needed to return to their duty stations on

short notice. Recall at the majority of other facilities, however, would be

difficult and, therefore, not feasible due to the distance controllers

would have to travel to reach the outdoors and the lack of paging systems

to summon employees back to their duty stations on short notice.

Accordingly, if the Employer's proposal were implemented, there likely

would be a total ban on smoking, both indoors and outdoors, at the vast

majority of facilities.



The Panel has in numerous prior decisions involving this issue

attempted to balance the interests of smokers and nonsmokers in this most

contentious area concerning working conditions. We do not believe that

adoption of the Employer's proposal would further that end. Moreover, we

note that there are special circumstances concerning air traffic

controllers, whose jobs involve the safety of the flying public and who

often work under stressful circumstances, which mitigate against a total

ban on smoking in the workplace. We see no need to contribute to an already

stressful work environment by adopting a proposal which would most likely

result in employees who have the smoking habit being unable to smoke at all

at the majority of facilities.&/



.

4/ We note with interest that regulations promulgated by the

Department of Transportation provide an accommodation for

airline passengers who smoke while traveling on nonstop

flights scheduled for more than 6 hours. 14 C.F.R. 252.7

(1991). Furthermore, the ban on smoking on certain flights





(Continued)





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Similarly, the Union's proposal fails to provide an adequate solution

to the impasse. Its provisions appear contradictory on their face. In this

regard, the Union proposes that the parties should negotiate at each site

over whether employees may smoke inside a given air traffic control

facility; however, it then goes on to state that the existing local

agreements on smoking should be retained. This apparent contradiction may

lead to grievances over the interpretation of the provision. Furthermore,

the proposal fails to take into consideration the adverse effects caused by

environmental tobacco smoke in the workplace. Other than calling for

negotiations at each facility, the proposal offers no reasonable

alternatives that would mitigate the effects of smoking.



In order to resolve this dispute we find that the parties should adopt

a compromise position. With respect to the approximately 22 ARTCC

facilities which are typically no more than 1 or 2 stories in elevation,

smoking shall be banned indoors; however, the Employer shall designate at

each an outdoor smoking area to accommodate smokers which (1) is reasonably

accessible to employees, and (2) provides a reasonable amount of protection

from the elements. Since the ARTCCs have outside paging systems and are of

low elevation, recalling smokers to their duty stations could be

accomplished relatively quickly should an emergency arise for which they

are needed. With respect to all other facilities, however, the parties

shall negotiate over a smoking policy on a site-specific basis. Initially,

the parties should jointly poll employees to determine the number who smoke

and whether the smokers have an interest in smoking indoors. If so, a

designated-indoor smoking area shall be established. During negotiations to

determine the location of designated-smoking areas, if any, the parties are

to be guided by the General Services Administration's regulations for

controlling smoking in GSA-operated buildings, 41 C.F.R. 101-20.105-3

(1990). In selecting an indoor designated-smoking area, the parties are to





with a scheduled duration of 6 hours or less is limited to the

passenger cabin and lavatories only, with no specific prohibition

against smoking in the cockpit area. 14 C.F.R. 252.5 (1991). Thus, it

appears that airline pilots and crews who work in the cockpit are not

restricted from smoking there while on duty.





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choose one which is sufficiently ventilated _o as to minimize best the

exposure of nonsmokers to environmental tobacco smoke. Should the parties

disagree over the selection of a designated-indoor smoking area, the matter

_hall be resolved through mediation/arbitration with the arbitrator's fees

and related expenses to be shared by the parties. An arbitrator shall

resolve the matter based upon his or her determination of which area best

minimizes the exposure of nonsmokers to second-hand tobacco smoke in

accordance with the Panel's decision





With respect to the issue of smoking cessation courses, again we find

that neither party's proposal provides an adequate solution. In order to

encourage smokers to overcome the habit and thereby improve their health

and lessen the amount of passive smoke in the workplace, we find that all

employees who smoke should be given an opportunity to attend cessation

classes at no cost to the employee. Any grant of official time for this

purpose, however, would be subject to operational requirements.



As to implementation, having ordered that negotiations for a smoking

policy be conducted on a site-specific basis, we find that in order to

provide a reasonable amount of time to conclude bargaining, the new

agreements should become effective no later than 120 days after review of

the Panel's decision by the agency head under section 7114(c) of the

Statute.



ORDER



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 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 parties to adopt the following compromise wording:



1. Indoor smoking shall be prohibited at the approximately 22 Air

Route Traffic Control Centers which are equipped with outside

paging systems. The Employer shall designate an outdoor smoking

area at each of those facilities to accommodate smokers which (1)

is reasonably accessible to employees, and (2) provides a

reasonable amount of protecti