United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF THE NAVY NAVAL AVIATION DEPOT NORFOLK, VIRGINIA
and LOCAL 39, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO; LOCAL 6, AERONAUTICAL PRODUCTION CONTROLLERS ASSOCIATION; LOCAL 4, NATIONAL ASSOCIATION OF AERONAUTICAL EXAMINERS; LOCAL R4-83, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO	Case No. 95 FSIP 78

 

DECISION AND ORDER

    The Department of the Navy, Naval Aviation Depot, Norfolk, Virginia (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 39, International Association of Machinists and Aerospace Workers, AFL-CIO (IAM&AW or Union); Local 6, Aeronautical Production Controllers Association (APCA or Union); Local 4, National Association of Aeronautical Examiners (NAAE or Union); and Local R4-83, National Association of Government Employees, SEIU, AFL-CIO (NAGE or 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. APCA and NAGE, however, did not submit responses pursuant to these procedures. The Panel has now considered the entire record.

BACKGROUND

    The Employer's mission is to serve military aviation by providing products and services to forces that train, fight, and win, while executing a successful transition of workload and personnel for the Employer’s closure slated for September 30, 1996. IAM&AW represents approximately 1,544 employees who hold positions such as laborer, mechanic, and tool maker. The parties have recently reached agreement over a successor collective-bargaining agreement. APCA represents approximately 113 employees who hold production controller positions. The parties' collective-bargaining agreement expired in April 1993. NAAE represents approximately 37 employees who hold aeronautical/aircraft examiner positions; Local R4-83, National Association of Government Employees, SEIU, AFL-CIO (NAGE) represents approximately 491 employees who hold positions such as accountant, budget analyst, clerk, computer programmer, equipment specialist, and secretary. Both of their collective-bargaining agreements expired in November 1994.

    The dispute arose during negotiations over a new smoking instruction (NAVAVDEPOT NORFOLK INSTRUCTION 5100.17), which the Employer presented to the Unions on September 17, 1993. Negotiations and mediation over the new instruction were held on and off since November 1993, some strictly involving the Employer and an individual Union, others with the Employer and all the Unions, and still others with the Employer and one Union representative appointed by all four Unions. Once the Employer requested assistance from the Panel, however, each Union had its own representative handle its respective position.

ISSUE AT IMPASSE

    The parties’ dispute centers around smoking policy.

POSITIONS OF THE PARTIES

1. The Employer's Position

    The Employer proposes that: (1) all indoor smoking at the Naval Aviation Depot be prohibited; (2) the Employer designate existing outdoor smoking areas that are reasonably accessible to employees and provide a modicum of protection from the elements; and (3) smoking be allowed only during already otherwise established breaks and lunch periods. However, "for those employees who do not have a set break time, supervisors will allow one 15-minute smoke break in the morning and one 15-minute smoke break in the afternoon as workload permits." Additionally, the Employer will provide "smoking cessation classes once at no cost for interested employees who shall be excused from work on official time, workload permitting, to attend the classes."

    Its proposals are consistent with past Panel decisions, as well as being in compliance with Department of Defense regulations. As for its first proposal, although the current smoking policy requires smoking outside except in inclement weather, employees still continue to smoke indoors in fair weather. As a result, non-smokers not only have been exposed to passive smoke, but due to the Employer’s industrial work environment, employees may have also been exposed to other hazardous chemicals, mists, and vapors that are carried in the stream of second-hand smoke. Therefore, because its "primary concern is for our employees’ health," its proposal should be adopted. Furthermore, prohibiting indoor smoking is consistent with the good Government standard of enhancing employees’ quality of work life, and is similar to what other military depots are doing. With respect to its second proposal, the Employer is a tenant on base and consequently does not have "cognizance" over whether it can construct additional smoking shelters. In this regard, the Employer was not allowed to construct outdoor smoking shelters in 1991 because of excessive costs, and the facility’s imminent closure date makes cost "even more of a prohibitive factor." Nevertheless, established "lean-tos and building overhangs" would provide a modicum of protection to accommodate smokers. Its third proposal permits all employees to smoke, "whether on an already otherwise break for wage grade employees, or on an authorized break given to other employees as a result of the Employer’s proposed smoking instruction." Finally, its willingness to provide smoking cessation classes is a "concession" as an attempt to assist employees with the change in policy.

2. The IAM&AW's Position

    Essentially, the Union proposes that the Panel order the parties back to the table. In this regard, an unfair labor practice (ULP) charge was filed against the Employer alleging bad-faith bargaining, among other things. Since the ULP is part of the bargaining process, "the parties are not truly at impasse."

3. The NAAE’s Position

    The Union essentially proposes the following alternatives:⁽¹⁾ (1) the Panel to decline [relinquish] jurisdiction; (2) require the Command to live up to the survey;⁽²⁾ and (3) upon receiving the information the parties will meet to negotiate types/location/number of shelters. In this regard, "the complete bargaining process has not been completed" and the Federal Mediation and Conciliation Service (FMCS) improperly declared the parties to be at impasse.⁽³⁾ Further, the Employer’s proposal would create a morale problem in the last 15 months prior to closure. Additionally, there is a prior smoking policy in effect between the parties. Finally, the Commander of NADEP did not show up for a meeting between the parties to discuss the smoking policy, thus making this "a dead issue."

CONCLUSIONS

    Having considered the evidence and arguments presented,⁽⁴⁾ we conclude that the Employer's proposals should serve as a basis for resolving the dispute, with some minor changes in wording to avoid potential interpretation questions, which shall be specified in the Panel’s Order. In this regard, the proposals provide reasonable accommodations for smokers while keeping expenditure of funds to a minimum during a time when the Employer is preparing for closure. Furthermore, they protect nonsmokers from the extensively documented health hazards associated with exposure to second-hand smoke,⁽⁵⁾ and are consistent with what we have done in the past in resolving such disputes. The Unions, on the other hand, fail to provide sufficient evidence to support their central position that the parties are not at impasse. Because adoption of their proposals would only continue to subject all employees to the well established dangers of second-hand smoke, in addition to the other reasons specified above, we shall order the adoption of a modified version of the Employer’s proposals.

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 proposals modified as follows:

1. All indoor smoking at the Naval Aviation Depot shall be prohibited.

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

3. A smoking cessation course shall be provided at no cost for interested employees, who shall be granted administrative leave, workload permitting, to attend the course.

4. Smoking will be allowed only during already otherwise established breaks and lunch periods. For those employees who do not have a set break time, supervisors will allow one 15-minute smoke break in the morning and one 15-minute smoke break in the afternoon as workload permits.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

July 28, 1995

Washington, D.C.

 

1.IAM&AW made similar proposals and arguments in its prejurisdictional submission.

2.The Unions contend that an agreement was reached that a survey would be done to determine such things as how many employees smoke, where they work, and if they would be interested in cessation classes.

3.It contends that the parties were declared to be at impasse by the wrong FMCS representative.

4.With respect to the ULP, the FLRA’s Regional Office is holding it in abeyance. The record indicates, however, that there has been an extensive amount of negotiations and mediation over the smoking policy.

5.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.