In the Matter of DEPARTMENT OF THE TREASURY INTERNAL REVENUE SERVICE FRESNO SERVICE CENTER FRESNO, CALIFORNIA
AND CHAPTER 97, NATIONAL TREASURY EMPLOYEES UNION	Case No. 95 FSIP 97

ARBITRATOR'S OPINION AND DECISION

    Chapter 97, National Treasury Employees Union (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 Treasury, Internal Revenue Service, Fresno Service Center, Fresno, California (Employer). The impasse arose over the Employer's proposal to eliminate all indoor smoking. After an initial investigation of the request for assistance by a Panel representative, the Panel directed the parties to mediation-arbitration before the undersigned.

    The parties appeared for mediation-arbitration at the Fresno Service Center on September 28, 1995. When mediation efforts failed to yield a resolution of the parties' dispute, the parties exchanged and discussed the final versions of their respective proposals, and presented information to complete the factual record of the case. The Arbitrator is satisfied that the parties have exhausted efforts to negotiate over the issue in dispute and that a decision is required to resolve the impasse.

BACKGROUND

    The Employer processes tax returns, corrects under and overpayments of taxes, seeks collection of small claims, and provides tax information to Federal taxpayers. The Union represents approximately 6,000 bargaining-unit employees who work as data processors and tax examining assistants and clerks in pay grades GS-2 through -8. These employees are part of a nationwide consolidated unit consisting of approximately 50,000 employees who are covered by a master collective-bargaining agreement (MCBA) between the Internal Revenue Service and the National Treasury Employees Union. The MCBA will expire on June 30, 1998, but a local supplemental agreement is being renegotiated by the parties on the subject of, among other things, workplace smoking.

    This impasse arises from the parties' inability to agree on whether all indoor tobacco smoking should be banned at the Employer's various facilities in Fresno, California. Currently, smoking is permitted in certain designated restrooms, canteens, and cafeteria areas, as well as in all outdoor locations. Most of the protective coverings for outdoor smoking areas proposed by the Employer were already in place or in the process of being procured at the time of the mediation-arbitration. The Employer also had implemented its proposed smoking cessation classes; its proposal in this regard is not an issue in dispute. It deferred the implementation of its proposed ban on indoor smoking pending the results of the mediation-arbitration.

ISSUE AT IMPASSE

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

POSITIONS OF THE PARTIES

1. The Employer's Position

    The Employer's proposal prohibits all indoor smoking at its Butler Avenue, Orange Avenue, Cherry Avenue, East Avenue, Tulare, Shaw Avenue, and East Kings Canyon Avenue facilities. It provides for outdoor smoking areas at certain designated exterior door entrances, patios, and atriums. In response to the Union's previous requests that protective coverings be provided for all atriums at the Butler Avenue facility, management determined that it would provide overhead coverings at three out of the six atriums located at the Butler Avenue facility.

    In support of its proposal, the Employer presented evidence that some of its employees had complained about indoor smoking and second-hand smoke. In addition, the Employer had received letters from the Fresno County Health Services Agency as well as the landlords of several of its buildings giving it written notification that under Cal. Labor Code § 6404.5, effective January 1, 1995, smoking is prohibited in all enclosed places of employment.

    The Employer argues that the indoor ventilation and exhaust modifications proposed by the Union are both impractical and costly. The cost of structural changes at its various facilities to accommodate indoor smoking and comply with federal ventilation standards is estimated to be $1,145,851.

2. The Union's Position

    The Union's proposal seeks to maintain the existing policy which permits indoor smoking in certain designated restrooms, canteens, and cafeteria areas, as well as unrestricted outdoor smoking at all exterior door entrances, patios, and atriums. In addition, all indoor smoking areas would be exhausted directly to the outside by an exhaust fan or comply with the ventilation standards adopted by the Federal Environmental Protection Agency. The Union's proposal requires management to include indoor smoking breakrooms in the building specifications for future locations which meet the exhaust or ventilation standards.

    The Union contends that its proposal meets the needs of smokers and non-smokers alike by providing structural protections against the hazards of passive smoke while allowing smokers the flexibility to smoke in areas to which they have become accustomed. Its proposal is in accordance with Government regulations at 41 C.F.R. § 101-20.105-3(c)(1) and (2)(iv) which prohibit smoking in general office space, but do not prohibit smoking in designated areas in cafeterias, corridors, lobbies, or restrooms. The Union claims that approximately 30 percent of unit members are smokers, although it concededly has not conducted any survey to substantiate that estimate. The morale of these employees would suffer as a result of a complete ban on indoor smoking. In the past, the Employer has expended funds on costly and far less significant projects than the proper ventilation of its facilities.

CONCLUSION

    The dangers associated with exposure to second-hand smoke have been well documented.⁽¹⁾ The same regulations relied upon by the Union to support its proposal to preserve indoor smoking provide that "[i]n recognition of the increased health hazards of passive smoke on the non-smoker, smoking is to be held to an absolute minimum in areas where there are non-smokers." 41 C.F.R. § 101-20.105-3(a)(1). Given the cost attendant to properly ventilating the indoor smoking areas proposed by the Union, it would be imprudent to order the Employer to implement structural changes to its facilities. The Employer's proposal, as modified below, reasonably accommodates both smokers and non-smokers in a period of budgetary constraints.

    Having evaluated the arguments and evidence presented by the parties, I conclude that the Employer's proposal should serve as a basis for resolving this dispute, with two modifications. First, non-essential language in the introductory paragraph of the smoking policy will be excluded. The second modification relates to the designation of five out of the six atriums at the Butler Avenue facility as outdoor smoking areas. During the course of negotiations between the parties, the Union proposed that all atriums at the Butler Avenue facility, except the southeast Building 4 atrium, be designated as outdoor smoking areas. Management did not oppose the Union's proposal. Accordingly, the Union's proposal regarding the atriums at the Butler Avenue facility will be adopted.

ORDER

    In light of the foregoing, the parties shall adopt a modified version of the Employer's proposal as follows, and such provisions shall become effective within 30 days from the parties' receipt of this Opinion and Decision:

Section 1 - Scope

Smoking will be prohibited in all buildings under the jurisdiction of the Director, Fresno Service Center (FSC). In addition, smoking will be prohibited in all Government vehicles assigned to FSC. The implementation of the indoor smoking ban will be delayed at the East, Orange, and Cherry facilities until the outdoor smoking accommodations agreed to herein have been completed.

Section 2 - Definition

Smoking is defined as a lighted cigar, cigarette, pipe or any other lit tobacco product.

Section 3 - Designated Outdoor Smoking Areas

In order to allow all employees to enter and exit all exterior and atrium door entrances without having to walk through second-hand smoke, no smoking will be allowed within ten (10) feet of said entrances.

Smoking areas will be provided as follows:

Butler Avenue Location

-All atriums except the southeast Building 4 atrium.

-All exterior door entrances (consistent with door schedules) except the Butler Avenue entrance.

-Southeast lawn area, once renovation is completed (½ of the tables will be designated as smoking; ½ as non-smoking).

Management has determined to provide an outdoor covered area at all the exterior door entrances and in three (3) of the designated atriums. These coverings will be placed so as to provided overhead protection from rain, hail, etc., to employees who access these areas from within the building. The outdoor covering for the east cafeteria atrium will be constructed as soon as funds become available. Management agrees to exercise its good faith best efforts to obtain funding.

The parties will meet and confer regarding appropriate side protective coverings for the west cafeteria atrium. These side coverings will be subject to renegotiation as of November 1996. The parties will establish the criteria for assessing the test period.

Orange Avenue Location

-The existing patio area outside the main doors of the North side entrance to the building.

Management has determined to provide a covering so as to provide overhead protection from rain, hail, etc., to employees who access these areas from within the building.

Cherry Avenue Location

-Under the awning placed outside the main entrance to the building.

East Avenue Location

-The existing patio area located on the East side of the building.

-A covered area off the main entrance to the building.

Tulare Location

-The outside patio area on the North side of the building.

-The outside covered overhang located on the North side of the building.

(No change to current practice.)

Shaw Avenue Location - Clovis

-The outside covered overhand located on the North side of the building.

Training Center - E. Kings Canyon Avenue

-Anywhere outside the building.

(No change to current practice.)

Section 4 - Safety

Smoking will be allowed outdoors, outside the parameters of the buildings, except as limited above. However, due to safety concerns, smoking will be prohibited within 50 feet of loading docks, combustible material, gas lines, and propane or gas tanks. These areas will be identified for employees as non-smoking areas. All smoking areas will be adequately lighted.

Section 5 - Breaks

Employees who wish to smoke may leave the work area and go to an outside area to smoke only during their regular break and lunch periods.

Section 6 - Infractions

Employees should not attempt to personally enforce the provisions of the smoking policy by confronting others. Instead, employees should report any infractions to their supervisor. Management will be responsible for compliance and will exercise sound and reasonable judgment in administering the agreement.

Section 7 - Smoking Cessation Classes

In an effort to assist interested employees who would like to stop smoking, during the first six (6) months of this agreement, a series of smoking cessation classes will be offered during work hours. These are 6-week courses of approximately 1 - 1.5 hours per week in duration. Attendance will be on a voluntary basis only. The first time an employee (who smokes and who is in a pay status) attends the course, administrative time will be granted provided the employee successfully completes the entire course. Employees who are in non-pay status during this time may elect to attend on their own time, or will be accommodated on administrative time within six (6) months of their return to duty. After the first six (6) months, periodic classes will be conducted by the employer. However, attendance at these classes will be on the employee's own time. Employees are also encouraged to take advantage of stop smoking programs within the community on their own time. Information on such programs can be obtained through the Health Unit or from the Employee Assistance Coordinator.

Section 8 - Education

Copies of this agreement will be provided to all employees within 30 days. Managers will discuss the provisions of the agreement in unit meetings.

Section 9 - Duration

The provisions of this agreement will remain in effect concurrent with NC IV.

 

Dolly M. Gee

Arbitrator

October 12, 1995

Los Angeles, California

 

1.See, e.g., 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.