United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF THE AIR FORCE MALMSTROM AIR FORCE BASE MALMSTROM AFB, MONTANA
and LOCAL 2609, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 92 FSIP 32

DECISION AND ORDER

    Local 2609, 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 the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, between it and the Department of the Air Force, Malmstrom Air Force Base, Malmstrom AFB, Montana (Employer).

    After investigation of the request for assistance, the Panel determined that the dispute over a basewide smoking policy should be resolved on the basis of the parties' responses to an Order to Show Cause why the Panel should not adopt the Employer's proposed no smoking policy, modified to provide for Employer-selected outdoor smoking areas which (1) are reasonably accessible to employees and (2) provide a reasonable amount of protection from the elements. After considering the parties' responses, the Panel would take whatever action it deemed appropriate to resolve the impasse. Submissions were made pursuant to this procedure, and the Panel has now considered the entire record.

BACKGROUND

    The Employer is the largest intercontinental ballistic missile base in the United States. Its mission is to provide support services, including among others, supply, transportation, communication, personnel, medical, commissary, and morale, recreation, and welfare to the 341st Strategic Missile Wing and the 301st Air Refueling Wing, for which it serves as home base. The Union represents approximately 399 General Schedule (GS) and Wage Grade (WG) employees. WG employees hold such jobs as painter, automotive mechanic, boiler plant operator, airfield clearing equipment operator, and power support systems mechanic. Sales store checker, secretary, fireman, contract specialist, and construction inspector are the most common jobs held by GS employees. The parties' collective-bargaining agreement was to expire on November 7, 1991, but remains in effect until a successor is implemented.

    The dispute arose during negotiations over a new master agreement. Since a smoking policy was the only issue remaining at the conclusion of bargaining, the parties severed it so as not to delay implementation of the agreed upon contract provisions. The smoking policy ordered by the Panel will be included as an addendum to the successor agreement.

    A Memorandum of Understanding (MOU) executed by the parties on November 12, 1987, sets forth the current smoking policy for buildings where bargaining-unit employees work.⁽¹⁾ Under this MOU, the Employer is required to provide designated indoor smoking areas that: (1) "meet regulatory requirements with regards to adequate ventilation," and (2) have "smoking receptacles" and "adequate heat, lighting, and seating." In addition, the MOU stipulates that employees be: (1) granted smoke breaks in accordance with Air Force Regulation 40-610; (2) allowed to attend smoking cessation classes, once on administrative leave and, thereafter, on annual or sick leave; (3) given 90 days to adjust to the policy; and (4) disciplined in a "gradual and progressive" manner for violations of the policy. The MOU also provides that any disputes over its terms be resolved through the contractual grievance procedure.

    In November 1991, the Union surveyed bargaining-unit employees to determine the number of smokers. Of the 339 employees contacted, 95, or 28.5 percent, reported that they were smokers. The Employer does not dispute the survey results.

ISSUE

Whether the parties have shown cause why the Panel should not order them to adopt the Employer's proposed no smoking policy, modified to provide for Employer-designated outdoor smoking areas which (1) are reasonably accessible to employees and (2) provide a reasonable amount of protection from the elements.

POSITIONS OF THE PARTIES

1. The Union's Position

    The Union proposes to incorporate into the successor agreement the MOU dated November 12, 1987, which sets forth the current smoking policy.⁽²⁾ In the alternative, it proposes that, at the very least, employees be permitted to smoke indoors during inclement weather. It is appropriate to continue to permit smoking in the current designated indoor areas because the base hospital's Bioenvironmental Engineering Services "surveyed" them and determined that they "safeguard nonsmokers from passive smoke exposure." Also, the absence of grievances over the current policy indicates that it is satisfactory to smokers and nonsmokers alike. Moreover, the Union has been sensitive to problems that have arisen under the current policy and has taken corrective action. For example, it agreed either to move or eliminate 18 out of 20 indoor smoking areas after employees were surveyed at the behest of management.

    The Employer's proposed policy discriminates against bargaining-unit employees because it would allow indoor smoking in areas where they do not work, such as clubs, recreation facilities, and barracks, but would prohibit it where they do. Also, by forcing employees who wish to smoke outdoors during inclement weather, it may jeopardize their health. Finally, the designation of outdoor smoking areas that provide smokers with reasonable protection from the elements, as provided for under the Panel's added wording to the Employer's proposal, would be an impractical solution in Montana because of the severe winter weather.⁽³⁾

2. The Employer's Position

    In essence, under the Employer's proposal, (1) smoking would be prohibited in any Government vehicle, building, or entryway, with the exception of the designated areas in the NCO Mess, Officers" Open Mess, Bowling Center, Military Family Housing, and designated dormitory areas; (2) smoke breaks would be provided in accordance with Air Force Regulation 40-610; (3) employees could attend one smoking cessation class at no cost to them and on duty time; (4) a 90-day accommodation period would follow implementation of the no-indoor smoking policy; and (5) smokers would be subject to a 120-day period of gradual and progressive discipline, with those who violate the no smoking policy to be given verbal warnings prior to any written disciplinary actions. This proposal is consistent with an earlier Panel decision which banned indoor smoking without also requiring that outdoor smoking areas be provided.⁽⁴⁾ Its purpose is to protect nonsmokers, who make up the majority of the bargaining unit, from the severe health risks associated with passive smoke. The only way to prevent them from being exposed to passive smoke is to prohibit all indoor smoking. In this regard, the Employer has received complaints from nonsmokers over the presence of tobacco smoke in buildings. On the other hand, employees who work in the six buildings without indoor smoking areas, because they were constructed after the 1987 MOU was implemented, have not registered any complaints over having to smoke outside without any protection. Moreover, having civilian employees abide by the same policy as military personnel avoids resentment.

    Finally, with respect to the modified proposal suggested by the Panel, the cost of (1) constructing outdoor facilities which meet the criteria specified therein or (2) modifying existing facilities to meet those criteria would be prohibitive. It notes that in a number of its earlier decisions concerning outdoor smoking areas, the Panel never ordered the construction or modification of a structure to provide smokers with total protection from the elements.

CONCLUSIONS

    Having considered the arguments presented, we conclude that the parties have shown cause why the dispute should not be resolved on the basis of the Employer's proposal as modified. We are convinced that, given the winter weather conditions at the base's geographic location, a third party may interpret the modified proposal to require, at a substantial cost to the Employer, the construction of a separate fully-enclosed, ventilated, and heated smoking facility for each building where there are smokers. We do not believe that it is prudent to order such contract wording, which could be interpreted to require a significant expenditure of funds by the Employer, during these times of reduced military spending simply to accommodate a small number of smokers. Allowing employees to continue to smoke indoors, even if only in limited areas during inclement weather, as alternatively proposed by the Union, also is an inappropriate resolution of this dispute. In this regard, the Union failed to argue convincingly that the level of ventilation required for indoor smoking areas under its proposal would adequately protect employees from dangerous passive smoke. In our view, protecting the health of all employees outweighs accommodating several employees with indoor smoking areas, even during harsh Montana winters. Under the circumstances of this case, therefore, the more reasonable solution is that proposed by the Employer. Accordingly, we shall order its adoption.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. S 7119, and because of the failure of the parties to resolve their dispute during the course of the proceeding instituted under the Panel's regulations, 5 C.F.R. S 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.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

October 27, 1992

Washington, D.C.

 

1.During the initial investigation of this case, both parties stated that smoking is not allowed in the base hospital and clinics or in buildings where only military personnel work. The Employer also stated that, at present, there are only 24 buildings with bargaining-unit employees that have designated indoor smoking areas. The Union indicated that when the parties negotiated the 1987 MOU, they agreed that indoor smoking areas did not have to be designated in those buildings where there were few bargaining-unit employees and all were nonsmokers. Also, in its response to the Order to Show Cause, the Union implies that not all of the 40 buildings where employees work currently have indoor smoking areas.

2.See supra p. 2.

3.The Union indicated to the Panel, during the initial investigation, that Montana gets "colder than Fairbanks, Alaska" and "windier than Chicago, Illinois" in the winter.

4.Department of the Interior, Fish and Wildlife Service Finance Center, Denver, Colorado and Local 3942, American Federation of Government Employees, AFL-CIO, Case No. 90 FSIP 206 (March 1, 1991), Panel Release No. 307, (where the Panel determined that the employer was not required to provide smokers with an outdoor smoking area that provided a "modicum of protection from the elements" where it was not "feasible" because of the exterior design of the building).