United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF THE AIR FORCE EIELSON AIR FORCE BASE EIELSON AIR FORCE BASE, ALASKA
AND LOCAL 1836, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 95 FSIP 141

DECISION AND ORDER

    The Department of the Air Force, Eielson Air Force Base, Eielson Air Force Base, Alaska (Employer) and Local 1836, American Federation of Government Employees, AFL-CIO (Union) filed a joint 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.

      After investigation of the request for assistance, the Panel determined that the impasse concerning smoking policy should be resolved through the issuance to the parties of an Order to Show Cause why the Panel should not order wording it adopted previously in substantially similar cases.⁽¹⁾ After considering the parties' responses to the Order to Show Cause, the Panel would take whatever action it deemed appropriate to resolve the impasse. Written statements of position and final offers were made pursuant to this procedure and the Panel has considered the entire record.

BACKGROUND

    The Employer’s mission is to conduct deployment/employment training in close air support, interdiction, and offensive counter-air missions for two fighter squadrons and various support personnel committed to three operational theater war plans; also supports 40,000 acres of training ranges; conducts COPE THUNDER combat readiness training and supports the Air National Guard Refueling Group, the Arctic Survival School, and the Air Force Technical Applications unit. The Union represents a bargaining unit of approximately 300 General Schedule (GS) and Wage Grade (WG) employees who hold positions such as carpenter, clerk, equipment operator, pipefitter, secretary, and welder. The parties' collective-bargaining agreement (CBA) was to have expired on September 10, 1985, but due to an automatic annual renewal clause, remains in effect until a successor is implemented.

ISSUE AT IMPASSE

    Whether the parties have shown cause why the wording in the Panel’s Order to Show Cause should not be adopted.

POSITIONS OF THE PARTIES

1. The Employer's Position

     In essence, the Employer agrees with the Panel’s proposed wording. In addition, however, it proposes that disputes concerning the accessibility or adequacy of protection provided by designated smoking areas be resolved as follows:

All disputes will be processed through the negotiated grievance procedures through the third step. Each dispute will then be referred to the 354 Fighter Wing Commander for a final, binding decision. The first dispute which is referred to the 354 FW/CC must be referred within 10 calendar days of receipt of the third step decision. The Union will have the opportunity to state their case concerning the adequacy of the smoking shelter in dispute. The 354 FW/CC will render a written decision within thirty (30) calendar days of the meeting between the parties. All subsequent disputes concerning adequacy of smoking shelters will be processed through the first and second steps of the negotiated grievance procedure. If not resolved at the second step, the Union may, within seven (7) calendar days, refer the dispute to the 354 FW/CC’s designee for a face-to-face meeting. The meeting will be held within ten (10) calendar days of receipt of the request. 354 FW/CC will render a final, binding written decision within twenty (20) calendar days of the meeting with his designee.

Its additional wording would resolve the issue of whether the Employer will have to construct shelters for the convenience of smokers. Failure to include such wording "would simply mean we must go into a different arena, that of arbitration, to resolve the issue." Therefore, its modified version of the Panel’s proposed wording would avoid the "uncertainties" and "expense" of having an arbitrator resolve the issue. Finally, the Employer agrees with the reasoning in a previous Panel case⁽²⁾ and "conclude[s] it applies equally to the climate in Alaska."

2. The Union's Position

    The Union basically would leave the smoking agreement⁽³⁾ in place and ensure that newly-constructed buildings⁽⁴⁾ meet all requirements to protect nonsmokers. If outdoor smoking areas are decided on, it would require that such structures meet the health and safety requirements for the interior of Alaska. Finally, "the Union does not wish to give up any options and rejects managements’ third proposal."

    It does not agree with the ban on smoking indoors. In this regard, most of the areas designated in the 1987 agreement comply with the Office of Safety and Health Administration (OSHA) requirements, and only minor modifications, such as putting in exhaust fans, are needed for those areas that do not currently comply. Any new buildings also will require only minor modifications. Further, there are no laws or regulations making it illegal to smoke on military installations. Keeping the current indoor areas, with the reduction of Federal employees, "could be a definite saving since less employees means less space required." Additionally, as a sign of good faith, it has agreed to a "summer stipulation" that employees will smoke outdoors during the summer months. However, given the "8 winter months in the interior of Alaska" with its unique conditions of darkness, extreme cold weather, and wind chill factors, if outdoor areas are designated, they must be enclosed insulated shelters, and provide heat, light, and exhaust fans. Overall, the Union wants to ensure that employees are protected from "frostbite, hypothermia, and all other hazards that comes with ice, snow, and extreme cold weather."

CONCLUSIONS

    Having considered the evidence and arguments in this case, we conclude that the dispute should be resolved on the basis of a modified version of the wording provided to the parties in our Order to Show Cause. In this regard, the Union's proposals fail to give sufficient consideration to the seriousness of the health issue involved. Moreover, we find no evidence in the record to support the view that the current available ventilation in the indoor smoking areas has eliminated the scientifically-proven adverse affects of second-hand smoke on the health of employees.⁽⁵⁾ We shall, therefore, retain the portion of our wording requiring that all indoor smoking be prohibited.

    As to the second sentence of the wording in the Order To Show Cause, we are persuaded that it could be interpreted by a third party to require the construction of separate, fully-enclosed, ventilated, and heated smoking shelters for each building where there are smokers. This would result in substantial cost, and would be imprudent in the current economic environment. In our view, however, the inclement winter weather at the base’s geographical location justifies some accommodation for employees who are prohibited from smoking indoors. For these reasons, we shall modify the wording provided to the parties by requiring them jointly to identify outdoor smoking areas meeting specified criteria intended to provide smokers a measure of protection from the elements. Any disagreements as to the areas identified should be resolved through grievance arbitration. In our view, this approach strikes an appropriate balance between the competing interests of smokers and nonsmokers, and is superior to any attempt by the Panel to identify outdoor areas without the benefit of on-site inspection of the installation. Accordingly, we shall order the adoption of wording consistent with this decision.

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 wording:

1. All indoor smoking shall be prohibited.

2. The parties shall jointly identify existing outdoor areas where employees may smoke. The areas shall meet the following criteria: they shall provide overhead coverings; they shall be reasonably accessible to employees’ worksites; and they shall meet safety, health, and security concerns. Any disagreements as to the areas identified should be resolved through grievance arbitration.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

September 27, 1995

Washington, D.C.

 

1.The Panel provided the following wording to the parties: 

1. All indoor smoking 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.

2.It cites Department of the Air Force, Malmstrom Air Force Base, Malmstrom Air Force Base, 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.

3.The Union refers to a 1987 agreement between the parties that listed which designated indoor areas would be permissible for smoking.

4.There have been at least four new buildings built on the base since 1987.

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.