United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF VETERANS AFFAIRS REGIONAL OFFICE ST. PETERSBURG, FLORIDA
AND LOCAL 1594, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 94 FSIP 037

DECISION AND ORDER

    The Department of Veterans Affairs, Regional Office, St. Petersburg, Florida (Employer) filed a request for assistance with the Federal Service Impasses Panel to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and Local 1594, American Federation of Government Employees, AFL-CIO (Union).

    After investigation of the request for assistance, the Panel determined that the impasse concerning smoking should be resolved through the issuance to the parties of an Order to Show Cause why wording adopted by the Panel in previous cases,⁽¹⁾ should not be mandated to resolve the dispute in this case. Following receipt of the parties' statements, the Panel would take whatever action it deemed appropriate to resolve the impasse. The Panel has now considered the entire record.

BACKGROUND

    The Employer, 1 of 58 regional offices in the Department of Veterans Affairs system, occupies a seven-story building overlooking Tampa Bay. It assists veterans in obtaining benefits such as housing and educational loans; pension, disability, and health care payments; and provides vocational rehabilitation. The Union represents approximately 500 employees who are part of a nationwide, consolidated bargaining unit. They work in positions such as clerk, benefit counselor, adjudicator, and hearing officer. The parties are covered by a supplemental agreement that became effective on April 15, 1977. The national collective bargaining agreement (CBA) will expire on May 22, 1995.

    The dispute arose during impact-and-implementation bargaining over the Employer's decision to ban indoor smoking. Currently, employees are permitted to smoke in the fourth floor breakroom but not in the one on the third floor; the Employer states that it has banned smoking by supervisors and managers who occupy private offices. The parties believe that approximately 30 to 33 percent of bargaining-unit employees smoke.

ISSUE AT IMPASSE

    The dispute essentially concerns whether bargaining-unit employees should continue to be permitted to smoke in designated indoor areas.

POSITIONS OF THE PARTIES

1. The Employer's Position

    The Employer basically would ban smoking in areas that it controls in the centrally-cooled building.⁽²⁾ Employees would be permitted to smoke outdoors on two covered porches located at the building's northern and southern ends that cover approximately 3,567 square feet. They also would be given a one-time opportunity to attend a complete smoking cessation program to be offered in a facility classroom, 1 to 2 hours per week for several weeks. It wishes "to create a smoke-free environment out of concern for employees' health and well-being." Scientific evidence reported in the Journal of the American Medical Association⁽³⁾ and by the Environmental Protection Agency⁽⁴⁾ establishes that sidestream and second-hand smoke are health hazards. Although the Union raised concerns related to passive tobacco smoke as early as 1986, the Employer did not consider such factors when the parties bargained over the current smoking policy; such evidence now justifies changing the smoking policy. Furthermore, the health and safety article in the national CBA requires such protective action; otherwise, the Union and the Employer "would be abrogating . . . joint responsibility." Moreover, if the ban is not instituted, "managers . . . will be faced with future on-the-job injury compensation claims for illness caused by smoking."⁽⁵⁾ Regarding outdoor protections for employees who smoke, the covered porches will protect employees from the elements.

2. The Union's Position

    Essentially, the Union proposes that the status quo be maintained. It would be willing to move the designated smoking lounge⁽⁶⁾ from the fourth to the third floor breakroom. One advantage would be that the third floor space has a window from which cigarette smoke could be exhausted directly to the outside. Other proposed improvements include (1) repairing the portable smoke filtration system located in the fourth floor lounge and (2) keeping doors closed. A total ban, however, is unnecessary because the current smoking policy is working well. On the other hand, the overhangs, referred to by the Employer as porches, are inadequate because they would expose employees to the region's high summer heat and humidity, and the danger from frequent lightning storms and electrical equipment operating there.

CONCLUSIONS

    Having considered the evidence and arguments presented by the parties, we direct that the dispute be resolved on the basis of the wording provided by the Panel. In this regard, we do not believe that the Union has shown cause to support a different outcome. The improvements it proposes do not, in our view, go far enough to separate employees from smoke-laden air in light of scientific evidence that links the passive inhalation of second-hand smoke to disease processes. Based on such evidence, we continue to favor prohibiting indoor smoking to protect employees' health. In addition, we are persuaded that the large covered porches will provide employees who smoke with an adequate measure of protection from inclement weather and sunshine. Finally, the offer of a single smoking cessation program to employees who wish to modify their smoking habits should be useful.

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 pursuant to 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 wording provided by the Panel as indicated in footnote 1.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

March 2, 1994

Washington, D.C.

 

1.The following wording was provided to the parties: 

1. All indoor smoking at the Department of Veterans Affairs Regional Office, St. Petersburg, Florida, shall be prohibited. 

2. The Employer shall designate outdoor smoking areas which (a) are reasonably accessible to employees and (b) provide a measure of protection from the elements. 

3. Smoking cessation classes shall be provided once at no cost for interested employees, who shall be excused from work on official time, workload permitting, to attend classes that are scheduled during their work time.

2.The Employer believes that the private veterans' service organizations such as the Veterans of Foreign Wars and the Disabled American Veterans that occupy space in the building likely would comply with the smoking ban.

3.Borland et al., Protection from Environmental Tobacco Smoke in California: The Case For A Smoke-Free Workplace, 268 JAMA 749 (1992).

4.Office of Research and Development and Office of Air and Radiation, U.S. Environmental Protection Agency, Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders, EPA 600, 6-90, 006F (1992).

5.The U.S. Supreme Court recently found a nonsmoking prisoner placed in a cell with inmates who smoked had a cause of action against prison authorities even though any negative health effects would be prospective. Helling v. McKinney, ___ U.S. ___, 113 S.Ct. 2475 (1993).

6.The Union denies that anyone smokes in its sixth floor office.