United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF THE NAVY GREAT LAKES NAVAL BASE GREAT LAKES, ILLINOIS
and LOCAL 2326, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 94 FSIP 148

DECISION AND ORDER

      The Department of the Navy, Great Lakes Naval Base, Great Lakes, Illinois (Employer) 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 Local 2326, American Federation of Government Employees, AFL-CIO (Union).

    After investigation of the request for assistance, the Panel determined that the dispute, which concerns a smoking policy, should be resolved on the basis of a single written submission from each party, with the Panel to take whatever action it deemed appropriate to resolve the impasse. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.

BACKGROUND

    The Employer's mission is primarily to train Navy recruits and active duty personnel. The bargaining unit consists of approximately 580 employees, the great majority working as accounting technicians, contract specialists, voucher examiners, and clerks under the General Schedule in pay grades GS-4 through -11. The parties are covered by a collective-bargaining agreement (CBA) which was due to expire on October 19, 1994, but remains in effect until a successor is implemented.

    The dispute centers on whether indoor tobacco smoking should be prohibited for bargaining-unit employees as it has been for military personnel since January 1, 1994. They now smoke outside in "unprotected areas" or under building overhangs, on loading docks, in alcoves, or in other existing outdoor structures. Bargaining-unit employees, on the other hand, continue to smoke in designated indoor areas presumably ventilated to the outside pursuant to a 1989 negotiated agreement. That agreement also required the Employer to keep employees informed of available smoking cessation programs. As for smoke breaks, a practice developed where employees take them in addition to the two 15-minute rest breaks and 30-minute lunch break provided under the CBA. A recent joint survey revealed that smokers make up 27 percent of the bargaining unit.

ISSUE AT IMPASSE

    The parties basically disagree over whether unit employees should be allowed to smoke indoors.

POSITIONS OF THE PARTIES

1. The Employer's Position

    The Employer proposes that smoking be prohibited in all work buildings and vehicles, with the exception of designated Morale, Welfare, and Recreation (MWR) facilities consistent with NTCGLAKESINST 5100.29C.⁽¹⁾ Outdoor smoking areas which are "(a) reasonably accessible to employees and (b) offer some measure of protection from the elements" would be provided for each of the approximately 12 buildings where bargaining-unit employees work.⁽²⁾ Employees would be permitted to smoke in those areas during rest and lunch breaks only. They also would be provided information on available smoking cessation programs. Finally, violators of the smoking policy would be subject to progressive discipline beginning with a letter of reprimand for a first offense (or attendance of a smoking cessation class in lieu thereof) "up to and including removal." It is "agreeable" to, but does not specifically propose, (1) delaying the effective date of the new smoking policy to a date "later than September 1, 1994" which was originally proposed in March 1994; (2) offering bargaining-unit employees "one smoking cessation class . . . free of charge and on-the-clock;" and (3) resolving any policy disputes under the contractual grievance and arbitration procedures.

    Its proposal is consistent with an earlier Panel decision banning indoor smoking without also requiring the construction of outdoor smoking facilities.⁽³⁾ The estimated cost of providing the type of shelters proposed by the Union would be $9,766 per shelter, including labor.⁽⁴⁾ Certainly, allowing employees to use existing outdoor structures, e.g., overhangs, loading docks, alcoves, etc., to smoke instead is "a more economical approach." It would also be more economical for an employee to attend a single smoking cessation class underwritten by the Employer, not the "minimum" of 10 proposed by the Union. "[T]he primary impetus for correcting the individual health hazard associated with smoking should rest with the employee rather than the employer."

    The Union's proposal allowing employees to continue to smoke in designated indoor areas "does not resolve the problems associated with passive smoke" because it would not be possible to ventilate all those areas to the outside. Even if it were, it would be an unacceptable solution because it would require the expenditure of "considerable" funds.

2. The Union's Position

    The Union appears to offer three alternative proposals. First, it proposes that the status quo be maintained with respect to indoor smoking. Employee breaks would be limited to what is provided for under the CBA; no additional ones would be allowed for smoking as has been the practice. Second, it proposes that: (1) implementation of the indoor smoking ban be postponed until January 1, 2000, "as was previously published by the Navy;" (2) employees be provided with 1 smoking cessation course (minimum of 10 classes) "free of charge and on-the-clock;" and (3) the Employer designate outdoor smoking areas which are "(a) reasonably accessible to employees and (b) offer some measure of protection from the elements," with disputes over whether the designated areas meet the standards being resolved through the contractual grievance and arbitration procedures. Finally, it proposes that, if indoor smoking is immediately banned, the Employer provide "bus stop type" shelters "not more than 50 feet" from every one of the approximately 12 buildings where unit employees work and "out of view of children and the general public."

    Permitting employees to continue to smoke in existing designated areas would be more cost effective for the Employer than building the outdoor shelters the Union has proposed.⁽⁵⁾ Also, it would be more appropriate than having employees smoking outdoors before the critical eye of the public and the impressionable eyes of children.⁽⁶⁾

Because all buildings on base are "somebody's indoor workplace," the Employer's proposal to allow smoking only in some (e.g., clubs, recreational areas, restaurants, etc.) creates a "double standard." The outdoor shelters the Employer intends to designate as smoking areas are unacceptable because they do not satisfy the stated standards. In this regard, some of those areas would not protect smokers from wind and rain while others would require nonsmokers (employees and members of the public) to walk through smoke to enter or exit buildings and permit smoke to seep indoors. The Employer's proposal, therefore, is inconsistent with a previous Panel decision on the matter.⁽⁷⁾

CONCLUSIONS

    Having evaluated the arguments and evidence presented, we conclude that a modified version of the Employer's proposal should serve as a basis for resolving the dispute. First, the proposal should be modified to provide for implementation of the indoor smoking ban 6 months from the date of the Panel's Decision and Order. This is consistent with the Employer's March 1994 proposal, and appears to be a timeframe to which it is amenable.⁽⁸⁾ Second, we shall provide for interested employees to attend one smoking cessation course free of charge and on duty time. The completion of an entire course, rather than just one class, should maximize a participant's ability to stop smoking. In our view, the notice period and free smoking cessation course should help facilitate employees' transition to a smoke free work environment. Finally, we shall order that any disputes over the interpretation of the new smoking policy be resolved through the parties' negotiated grievance and arbitration procedures, which is acceptable to both parties.⁽⁹⁾

    Overall, the modified proposal provides reasonable accommodation for smokers in a period of budgetary constraints, while protecting nonsmokers from the extensively documented health hazards associated with exposure to second-hand smoke.⁽¹⁰⁾ The Union's proposals allowing smoking to continue in existing designated indoor areas, on the other hand, are unacceptable because there is no evidence in the record that the ventilation in those areas would adequately protect nonsmokers from dangerous passive smoke. Nor would it be prudent to order the Employer to expend a significant amount of money adequately to ventilate those areas to the outside or provide outdoor shelters of the type proposed by the Union during these times of reduced Government spending.

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 Employer's proposal modified as follows:

1. NTC GREAT LAKES (COMPLEX²) INSTRUCTION 5100.29C, dated 28 October 1993, which bans smoking in most buildings at Great Lakes, will become effective 6 months from the date of the Panel's Decision and Order.

2. Information will be made available to employees concerning smoking cessation assistance, and those interested will be allowed to attend one smoking cessation course free of charge and on duty time. Employees may attend other courses but on their own time and at their own expense.

3. Information will be communicated to employees concerning the health and safety risks associated with smoking.

4. Outdoor smoking areas will be designated for all buildings in which bargaining-unit employees work. These outdoor areas will be (a) reasonably accessible to employees and (b) offer some measure of protection from the elements.

5. Employees who violate the smoking policy will be subject to progressive disciplinary action, up to and including removal. For a first offense, an employee may elect to attend a smoking cessation course on his or her own time rather than receive an official letter of reprimand. The next offense will be treated as a second offense in all cases.

6. The policies on work breaks and lunch periods will be applied equitably to smokers and nonsmokers. Smokers will not be granted additional time to smoke.

7. Any disputes over the interpretation of the smoking policy, including disagreements over whether the designated outdoor areas meet the specified standards, will be resolved through the grievance and arbitration procedures in the collective-bargaining agreement.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

November 18, 1994

Washington, D.C.

 

1.It appears from the record that the Union does not represent employees working in MWR facilities.

2.It is the Employer's position that building overhangs, loading docks, alcoves, etc. meet these standards. It does not read this wording as requiring it to build outside shelters of any kind.

3.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 (October 27, 1992), Panel Release No. 338, (where the Panel determined not to order the adoption of the specified standards for outdoor smoking areas because, given the winter weather conditions in Montana, an arbitrator could interpret them to require the construction of facilities at a significant expenditure of funds to the employer during a time of reduced military spending).

4.In support of this cost estimate, the Employer submitted copies of specifications and a price list from a supplier of "bus stop type" shelters.

5.It argues that "a more realistic" cost estimate than the Employer's for building "bus stop type" shelters is $1,280 per shelter, but provides no supporting documentation.

6.There is a day care center located near some of the work buildings.

7.Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania and Local F-61, International Association of Firefighters, AFL-CIO, Case No. 93 FSIP 178 (February 7, 1994), Panel Release No. 355.

8.In March 1994, the Employer proposed to implement the smoking ban in September 1994, 6 months later.

9.We note that the Union does not dispute the parts of the Employer's proposal (1) limiting smokers' breaks to what is already provided under the CBA and (2) disciplining smoking policy violators on a progressive basis.

10.See, for example, Environmental Protection Agency. Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders. Environmental Protection Agency, Office of Research and Development, RD689. EPA/600/6-90/006F, December 1992; U.S. Department of Health and Human Services. Reducing the Health Consequences of Involuntary Smoking: 25 Years of Progress. A Report of the Surgeon General. U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control, Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health. DHHS Pub. No. (CDC) 89-8411, 1989; and U.S. Department of Health and Human Services. The Health Consequences of Involuntary Smoke. A Report of the Surgeon General. U.S. Department of Health and Human Services, Centers for Disease Control, Center for Health Promotion and Education, Office on Smoking and Health. DHHS Pub. No. (CDC) 87-8398, 1986.