United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT REGION V CLEVELAND, OHIO
AND LOCAL 3701, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO	Case No. 92 FSIP 205

 

DECISION AND ORDER

    Local 3701, 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 the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Housing and Urban Development, Region V, Cleveland, Ohio (Employer or HUD).

    After investigation of the request for assistance, the Panel determined that the impasse concerning smoking policy should be resolved on the basis of written submissions from the parties, 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 considered the entire record.

BACKGROUND

    The Employer's mission is to provide housing to low and moderate income families. The Union represents approximately 123 nonprofessional employees in such jobs as construction analyst, appraiser, loan specialist, housing representative, and clerk. The parties' master collective-bargaining agreement, which expires in June 1993, permits local bargaining on smoking policy. The parties' local supplemental agreement expired in 1990.

ISSUE AT IMPASSE

    The parties disagree over whether private offices should continue to be designated as smoking areas.

1. The Union's Position

    The Union proposes that smoking in private offices within the facility be prohibited. The Employer's current practice of permitting the three smokers with private offices to designate them as smoking areas violates applicable sections of the General Services Administration's (GSA) Federal Property Management Regulations (FPMR) at 41 C.F.R. § 101-20.105-3.⁽¹⁾ In this regard, such offices are really general office space, occupied by personnel performing daily work functions, and "not properly configured nor sufficiently ventilated to protect non-smokers from involuntary exposure to smoke." Given the importance of the health issues involved, "the Union cannot be a party" to management's attempt to legitimize its noncompliance with a Governmentwide regulation by negotiating an agreement "that would authorize it."

    Its position is further supported by the results of a "survey" of eight employees who share office space "immediately adjacent to the so-called 'private' offices" who believe they are being involuntarily exposed to second-hand smoke. As to the Employer's statement that it is "somewhat puzzled" that the Union is not concerned with the hazardous effects of second-hand smoke in the lunch and break room accessible to all employees, the room "complies with the FPMR's definition of a designated smoking area."

2. The Employer's Position

    The Employer proposes to maintain the status quo by continuing to permit employees in private offices to smoke. It would also maintain the current practice of requiring that doors to such offices, as well as two additional doors leading to the front office area where the private offices are located, be closed at all times. It proposes to supplement the current single smoke eliminator by purchasing additional ones for all private office holders who wish to smoke, and to require that the occupants of private offices refrain from smoking when individuals enter their offices.

    GSA regulations state that "exposure to second-hand smoke must be kept to a minimum, not eliminated," and it believes "it has complied with all GSA regulations as they pertain to smoking" because the private offices in question are occupied by individual employees. Moreover, "there has been no factual evidence presented regarding second-hand smoke from the identified private offices" affecting personnel in outer office areas. If the Union is concerned about the hazards of second-hand smoke caused by the smokers who occupy private offices, the Employer is "somewhat puzzled" as to why it is not similarly concerned with the second-hand smoke in the designated lunch and break room which "would affect 110 employees." In any event, other HUD offices within the Region have the same policies as the Employer, "including a designated smoking area and private office smoking."

CONCLUSIONS

    Having considered the evidence and arguments in this case, we conclude that neither party's position adequately addresses the magnitude of the health problem at issue. In this regard, we view the Employer's approach of relying on closed doors and smoke eliminators as anachronistic given the overwhelming body of scientific evidence that has conclusively established the health hazards associated with the passive inhalation of second-hand or environmental tobacco smoke.⁽²⁾ The record indicates that this approach would be particularly ineffective in protecting the health of nonsmokers in the circumstances of this case because the private office areas share a common ventilation system with the front office area in which they are located. The Union's proposal, on the other hand, does not go as far as it should in establishing a smoke-free workplace. In our view, its reliance on FPMR definitions to justify maintaining the current lunch and break room as a designated smoking area demonstrates that it also fails to grasp the significance of the health hazards involved.

    For these reasons, we find it necessary to reach beyond the boundaries of the dispute as presented by the parties and prohibit all indoor smoking in the Cleveland HUD facility. Indeed, such an approach is consistent with the FPMR, which specifies that "nothing in these regulations precludes an agency from establishing more stringent guidelines."⁽³⁾ It is also consistent with what we have done in most of the smoking-policy cases that have come before us since the hazards of second-hand smoke have become fully known. In addition, we shall require the Employer to designate outdoor smoking areas which (1) are reasonably accessible to employees and (2) provide a measure of protection from the elements. In our view, any inconvenience to employees caused by requiring them to go to Employer-designated outdoor areas to smoke is outweighed by the health benefits to all employees.

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 under 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 following wording:

All indoor smoking shall be prohibited in the HUD Cleveland facility. Outdoor smoking areas shall be designated by the Employer which (1) are reasonably accessible to employees and (2) provide a measure of protection from the elements.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

February 11, 1993

Washington, D.C.

 

1.The Union has also submitted documents establishing its efforts to obtain GSA's "assistance, involvement, and enforcement of its own FPMR pertaining to smoking" while the matter is pending before the Panel.

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

3.41 C.F.R. § 101-20.105-3(a)(3).