United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of DEPARTMENT OF THE NAVY TRIDENT REFIT FACILITY, BANGOR SILVERDALE, WASHINGTON
AND LOCAL LODGE 282, INTERNATIONAL ASSOCIATION OF MACHINISTS AND  AEROSPACE WORKERS, AFL-CIO	Case No. 94 FSIP 173

DECISION AND ORDER

Local Lodge 282, International Association of Machinists and Aerospace Workers, 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 the Navy, Trident Refit Facility, Bangor, Silverdale, Washington (Employer).

After investigation of the request for assistance, the Panel determined that the dispute should be resolved through a teleconference with a Panel representative. The parties were advised that if no settlement were reached, the Panel's representative would notify the Panel of the status of the dispute, including the final offers of the parties, and would make recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

Pursuant to the Panel's determination, Staff Associate Nick G. Duris conducted a telephone conference with the parties on November 9, 1994. During the proceeding, the parties were unable to reach agreement on the outstanding issue. Mr. Duris has reported to the Panel, and it has now considered the entire record.

BACKGROUND

The Employer's mission is to repair and refurbish submarines. The Union represents approximately 975 bargaining-unit employees who hold positions such as budget analyst, carpenter, electrician, machinist, planning estimator, and welder. The parties are covered by a collective-bargaining agreement (CBA) that expires in June 1995. Negotiations on a successor agreement are anticipated to begin in April 1995.

The dispute arose when the Employer announced that it was going to ban smoking during work hours, and later implemented its proposals in July 1994. The parties agreed to a ban on indoor smoking in 1992.

ISSUE AT IMPASSE

The dispute essentially concerns whether bargaining-unit employees should continue to be permitted to smoke during paid break periods.

POSITIONS OF THE PARTIES

1. The Employer's Position

Essentially, the Employer proposes to phase out paid smoke breaks at Trident Refit Facility. Employees who smoke will receive one paid break before the lunch period and one paid break after the lunch period until December 31, 1994. After December 31, 1994, there would be only one paid break, and on June 30, 1995, the other paid break would be eliminated. After June 30, 1995, unpaid smoke breaks could be taken, but would either extend the workday or be charged to annual leave or leave without pay. Its proposal is needed because supervisors have reported a reduction in productivity due to employees' taking unreasonably long smoke breaks. Since there is no written break policy, supervisors have no means to control its abuse. Furthermore, nonsmokers have complained because they are not entitled to equivalent breaks. Additionally, its proposal is in line with Department of Defense directives to curtail the use of tobacco products at Federal facilities and during Government time. This should promote a "healthful work environment" and prevent taxpayers from paying for "nonproductive time." Finally, nonsmokers have never been a problem with respect to breaks. Therefore, any solution that all employees be given two 15-minute breaks would "destroy the present successful system" that is in place for nonsmokers.

2. The Union's Position

The Union proposes that the Employer reinstate the status quo and have first-level supervisors address the problem of reduced productivity related to smoke breaks if it exists in any work area. Although there has been no written break policy for the past 15 years, unlimited paid breaks for smokers and nonsmokers were permitted. In this regard, employees were "free to leave the work areas to get a pop, use the restroom, go to the cafeteria for food, get up and walk around, etc., or go have a cigarette." If abuse arose, it was dealt with by the supervisor on a case-by-case basis, and the Employer has failed to show any compelling need to change this past practice. For instance, there has been no evidence that productivity has decreased due to people taking too much time on breaks, nor have there been any grievances filed from nonsmokers over inequitable treatment. Finally, the new policy is discriminatory toward smokers since employees can take unlimited paid breaks as long as they do not "light up a cigarette."

CONCLUSIONS

Having considered the evidence and arguments presented, we conclude that neither party's proposal would adequately resolve the dispute. On the one hand, we find the Union's proposal for an unlimited number of breaks has at least the potential for abuse and may contribute to lower productivity. On the other hand, the Employer's proposal would eventually eliminate smoking during paid break periods, a right typically afforded an employee during his or her break. Therefore, we shall adopt a compromise that all employees be limited to two 15-minute breaks, and that smoking be permitted during these breaks. This should accommodate the needs of smokers while eliminating any allegations of unfair or disparate treatment. Furthermore, a uniform break policy appears to be a common practice in the Federal sector and has been ordered in a number of Panel decisions.^(*) Since the parties will shortly begin negotiations over a successor term agreement, they may view this solution as a pilot program. In this regard, the parties may bring this topic up again for negotiations at that time, and address whether the pilot has been a success.

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 following wording:

All bargaining-unit employees will be limited to two paid 15-minute breaks. Smoking will be permitted during these breaks.

By direction of the Panel.

Linda A. Lafferty
Executive Director

December 27, 1994
Washington, D.C.

 

*. / See, for example, Department of the Navy, Fleet and Industrial Supply Center, Pensacola, Florida and Local 1960, American Federation of Government Employees, AFL-CIO, Case No. 93 FSIP 235 (March 10, 1994), Panel Release No. 356 and Department of the Air Force, Colorado Air National Guard, Englewood, Colorado and Mile High Chapter, Association of Civilian Technicians, Case No. 91 FSIP 26 (November 1, 1991), Panel Release No. 319.