BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Local 1164, American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse, under 5 U.S.C. § 7119 of the Federal Service Labor-Management Relations Statute (Statute), between it and the Social Security Administration (SSA), Quincy Field Office, Quincy, Massachusetts (Employer).

    After investigation of the request for assistance, the Panel determined that the dispute, which arose during negotiations over changes in the office smoking policy, should be resolved on the basis of written submissions from the parties.⁽¹⁾ The parties were advised that after receiving their submissions, the Panel would take whatever action it deemed appropriate to resolve the impasse, which may include the issuance of a Decision and Order. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.

    The Employer’s mission is to administer retirement, Medicare, disability, survivor, and Supplemental Security Income entitlement programs. There are 19 bargaining-unit employees in the office who are part of a nationwide consolidated unit of approximately 48,000. Typically, employees hold positions such as claims or service representative, or they are part of the clerical support staff. At the national level, the parties’ master collective-bargaining agreement (CBA) which was to have expired on March 5, 1999, has been extended until a successor agreement is negotiated. The dispute arose during bargaining over the Employer’s proposal to eliminate the practice in the office whereby employees who smoke are permitted to take smoking breaks, in addition to the two 15-minute rest periods authorized by Article 10, Section 1B⁽²⁾ of the master CBA.

    The sole issue in dispute is whether the practice of allowing employees to take smoking breaks should be continued.

POSITIONS OF THE PARTIES

1. The Employer’s Position

2. The Union’s Position

    The Union proposes:

Work intervals for the relief of personal necessity shall, for such matters as restroom use, drinking water and other such brief intervals, remain in effect in accordance with office past practices. Employees will continue to make reasonable efforts to take such brief intervals during non-public hours, to the extent it is feasible.

The intent of the proposal is to allow for the continuance of a long-standing past practice in the office whereby employees are permitted to take infrequent smoking breaks of short duration (3 to 5 minutes), during the office’s non-public workhours, in addition to the rest periods authorized under the parties’ CBA. The issue of smoking breaks has never been significant to management, which has allowed the practice to continue for many years, as employees attest in affidavits. Other SSA offices in Massachusetts (Malden, Lawrence and Somerville) also permit employees to take smoking breaks in addition to their regularly-scheduled rest periods. Since there are a decreasing number of smokers in the office, currently only five, the impact of continuing the practice would be minimal.

    Furthermore, under Article 1 of the CBA, local practices should remain in effect, unless they are "specifically covered by" the contract.⁽⁴⁾ Since neither the master CBA, nor the 1987 national MOU on smoking policy, specifically address smoking breaks, and it does not conflict with any agreement, the practice should remain in effect. Moreover, the breaks have provided a reasonable accommodation for employees who smoke, and have made the work environment less stressful. The Panel has found smoking during duty hours to be reasonable where it does not disrupt service to the public, there is no abuse of the practice, and there is some measure of management control.⁽⁵⁾ The Employer has not provided any evidence that smoking breaks interfere with management’s ability to assign work, the mission of the agency, or service to the public. Employees who may be on a smoking break are immediately accessible to management and other employees since there are designated outside smoking areas close to the building; management, therefore, could easily monitor any abuse of smoking breaks. Finally, such breaks are analogous to the unscheduled breaks employees take during the day to use the restroom, fill water bottles, or make personal telephone calls. Smoking breaks would have as little impact on work production as do these other types of "personal" breaks.

    After carefully reviewing the arguments and evidence presented, we conclude that the dispute should be resolved on the basis of the Union’s proposal, as modified herein. In reaching this conclusion, we are persuaded that smokers in the Quincy Field Office should be permitted to continue to take smoking breaks primarily for two reasons. First, the practice has existed for many years, and secondly, the Union indicates that such breaks would be of short duration–-no more than 5 minutes, which makes them analogous to other personal necessity breaks which employees take. We note in this regard that the Employer has not provided any substantiated evidence of complaints by non-smokers. Furthermore, since smoking breaks would be infrequent, taken only during non-public hours, and in readily accessible designated smoking areas close to employee work areas, there should be little, if any, impact on employee productivity and service to the public. In addition, the proximity of designated smoking areas to employee entrances should enable management to monitor any abuse of the practice and take appropriate action as necessary.

    In our view, however, the Union’s proposal is too broadly worded, and appears to concern breaks for a wide range of purposes other than smoking. Accordingly, it shall be modified to address the only issue before the Panel, smoking breaks, so that it more clearly reflects the Union’s stated intent. Finally, while we are adopting a modified version of the Union’s proposal in light of the particular circumstances that pertain at the Quincy Field Office, our decision should not be interpreted as an endorsement of smoking. The parties are encouraged to continue their efforts to combat the adverse effects of smoking on the health of employees by persuading smokers, through such means as smoking cessation programs, to abandon the habit.

    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 under 5 C.F.R. § 2471.6(a)(2)of the Panel’s regulations, the Federal Service Impasse Panel under 5 C.F.R. § 2471.11(a) of its regulations hereby orders adoption of the following wording:

Employees who smoke are permitted to take smoking breaks of no more than 5 minutes during non-public hours. Management retains the right to curtail these breaks for any employee who is abusing them or where smoking breaks unduly interfere with an employee’s work production or service to the public.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

March 15, 1999

Washington, D.C.

1.The parties mutually agreed to extend the time frames for their submissions to the Panel.

2.Article 10, Section 1B–Hours of Work, provides that a “rest period of fifteen (15) minutes duration will be allowed each employee twice during each 8-hour day.”

3.See Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, Syracuse, New York and Local 1760, American Federation of Government Employees, Case No. 93 FSIP 164 (November 18, 1993), Panel Release No. 351, where the Panel adopted the employer’s proposal which eliminated the practice in the office of allowing smokers to take “smoke breaks” in addition to their lunch and rest periods. The employer had argued that since employees would have to descend eight floors to go outside to smoke, due to the elimination of smoking in the stairwell, there would be an adverse effect on productivity should smokers be permitted to travel the distance necessary to take additional breaks. The Panel determined that eliminating smoking breaks would minimize “disruptions of service to the public.”

4.Article 1, Section 2–Past Practices, provides that “any prior benefits and practices and understandings which were in effect on the effective date of the Agreement at any level (national, council, regional and local), and which are not specifically covered by this Agreement do not detract from it shall not be changed except in accordance with 5 U.S.C. 71.”

5.See Department of the Navy, Naval Ordnance Station, Louisville, Kentucky and Lodge 830, International Association of Machinists, Case No. 90 FSIP 222 (March 15, 1991), Panel Release No. 308, where the Panel adopted the employer’s proposal that smoking breaks be permitted at any time during duty hours so long as there was no abuse of the privilege; in the event of employee abuse, management would assign designated times for smoking breaks. The Panel was persuaded that the proposal gave the employer a needed measure of control over smoking breaks.