United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of NATIONAL LABOR RELATIONS BOARD WASHINGTON, D.C.
and NATIONAL LABOR RELATIONS BOARD PROFESSIONAL ASSOCIATION and WASHINGTON LOCAL, NATIONAL LABOR RELATIONS BOARD UNION	Case No. 93 FSIP 173

DECISION AND ORDER

    The National Labor Relations Board Professional Association (NLRBPA) 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 National Labor Relations Board, Washington, D.C. (Employer or NLRB). The Washington Local, National Labor Relations Board Union (NLRBU) subsequently joined the NLRBPA's request for assistance.

    After investigation of the request, the Panel determined that the impasse, which concerns the smoking policy at the Employer's new headquarters, should be resolved on the basis of a single written submission from each party, with the Panel to issue a Decision and Order to resolve the impasse. Written submissions were made pursuant to this procedure⁽¹⁾ and the Panel has now considered the entire record.

BACKGROUND

    The Employer's mission is to administer the National Labor Relations Act. The NLRBPA represents 2 separate bargaining units of approximately 140 attorneys who work at the Employer's headquarters in Washington, D.C. The Washington Local, NLRBU, represents 2 separate bargaining units of approximately 100 clerical employees who also work at the headquarters office. The NLRBPA has separate collective-bargaining agreements (CBA) with the Employer for each of the units it represents which run concurrently, and expired on September 26, 1993. Similarly, the Washington Local, NLRBU, has separate agreements with the Employer for each of the units that it represents which also run concurrently; both expired in 1985, but remain in effect by mutual agreement of the parties.

    The parties reached impasse following negotiations over the smoking policy at the Employer's new headquarters building. During negotiations they agreed to an interim policy permitting smoking in two indoor lounges which will remain in effect only until the Panel resolves the instant impasse.

ISSUE AT IMPASSE

    The parties' disagreement concerns whether the Employer should have a smoke-free workplace at the new headquarters building.

POSITIONS OF THE PARTIES

1. The Unions' Position

    The Unions propose that smoking be allowed only in outdoor areas and the garage-level smoking area provided by the building's management. It also proposes that the Employer provide "no-cost smok[ing] cessation classes during working hours for those smokers who wish to stop their habit."⁽²⁾ The need for a smoke-free workplace is supported by an overwhelming body of scientific evidence conclusively establishing the dangers to health caused by the passive inhalation of second-hand smoke. The Employer's contention that employee lounges are equipped with ventilation and exhaust systems that would extract smoke so rapidly that the health of nonsmokers would be unaffected is "patently false." In this regard, there have been "numerous complaints" from employees on the ninth floor about the smoke in the lounge.

    Evidence that the Unions' position is broadly supported by their members comes in the form of surveys conducted prior to the phased-in relocation to the new building, and a petition drive that occurred after the Employer announced its intention to designate the ninth floor lounge as a smoking area. In addition, besides the NLRB, the building is currently occupied by three other tenants, "all of which prohibit smoking in their workplaces." The building is "posted as nonsmoking," and it's management prohibits smoking in the lobby and elevators. Finally, the two entrances to the building are covered, contain cigarette receptacles, "provide a good measure of protection from the elements, and are sufficiently large to accommodate many smokers."

2. The Employer's Position

    The Employer proposes, in essence, that indoor smoking be permitted only in the seventh and ninth floor lounges, and prohibited in all other areas of the building under its control. It also would provide, "at no cost to employees, a smoking cessation course" at the new facility during the lunch period, and offers "to meet and discuss with the Unions methods to monitor for compliance with the smoking policy." Finally, it proposes that the policy remain in effect for 3 years, and from year to year thereafter, unless one party gives written notice of its intent to renegotiate.

    Both the bargaining history and its proposals "demonstrate great sensitivity to the concerns expressed by the Unions." In this regard, management could have continued to apply the less restrictive smoking policy implemented in 1987 at the new building, but in deference to the Unions, opted to negotiate an interim policy which, among other things, prohibits smoking in private offices. The "extraordinary precautionary measures" reflected in its proposals are further demonstrated by the "specially acquired and highly sophisticated ventilation systems" installed in each of the four employee lounges and all private offices. These "state-of-the-art" systems "do not allow smoke to travel away from the source." Moreover, recent air quality testing conducted in both smoking and nonsmoking areas revealed equivalent readings "which coincide with the design specifications for this area."

    Its proposals are consistent with a number of previous Panel decisions where "the presence of a ventilation system equipped with an outside exhaust appears to be a key factor" in whether parties are ordered to adopt provisions permitting smoking in indoor areas. While the engineering specifications already established for the new building would eliminate exposure to smoke even if it were allowed in private offices, the Employer is nevertheless amenable to further restricting smoking to only two lounges. Finally, its proposals "are reasonable attempts to balance the needs of smokers and nonsmokers in the workplace."

CONCLUSIONS

    Having considered the evidence and arguments presented by the parties in this case, we shall order the adoption of a modified version of the Unions' proposals to resolve the dispute. Preliminarily, we note that decisions of the Panel are nonprecedential, and involve consideration of the merits of positions on a case-by-case basis. Nevertheless, it is clear that in the area of smoking policy, the Panel has generally deferred to the enormous body of scientific evidence establishing the dangers to health caused by the passive inhalation of second-hand smoke, and endorsed the goal of a smoke-free workplace. With this in mind, a careful examination of the circumstances in this case persuades us that the Unions' proposals strike the better balance between the needs of smokers and nonsmokers. Our only modification concerns a part of the dispute given little emphasis by the parties in their submissions concerning smoking cessation courses. While both agree that the Employer should offer such programs at no cost to assist employees who desire to stop smoking, we believe it necessary to clarify that only one smoking cessation course should be provided for each smoker, and that each smoker should have the discretion to decide if and when to take advantage of the opportunity. Accordingly, we shall order wording to that effect.

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 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 wording:

1. Smoking shall be permitted only in outdoor areas and the garage-level smoking area provided by the building's management.

2. The Employer shall provide one smoking cessation course during working hours at the Employer's expense for each smoker. Each smoker shall have the discretion to decide if and when to take advantage of the opportunity.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

November 5, 1993

Washington, D.C.

 

1.The NLRBPA and NLRBU (Unions) submitted a joint written statement.

2.The part of the Unions' proposal involving smoking cessation classes appears in a document submitted with their request for assistance which was incorporated by reference into their joint submission to the Panel.