DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS WASHINGTON, D.C. and COUNCIL OF PRISON LOCALS 33, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
WASHINGTON, D.C.

and

COUNCIL OF PRISON LOCALS 33, AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO

Case No. 01 FSIP 184

DECISION AND ORDER

    The Department of Justice, Federal Bureau of Prisons, Washington, D.C. (Employer or FBOP) 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 Council of Prison Locals 33, AFGE, AFL-CIO (Union).

    Following an investigation of the request for assistance, arising from negotiations over an agency-wide program statement on smoking, the Panel determined that the dispute should be resolved (1) through the issuance of an Order to Show Cause,(1) followed by (2) an informal conference with a Panel representative for the purpose of (a) clarifying any matters raised in their responses to the Order to Show Cause and (b) assisting them in resolving any outstanding issues in their impasse over smoking policy. The parties were advised that if no settlement were reached, the Panel representative would report on the status of the impasse, including the parties’ final offers, and make recommendations for resolving the issues. The parties were further advised that after considering the report, the Panel would take whatever action it deemed appropriate, which could include the issuance of a binding decision.

   Pursuant to the Panel’s determination, written responses were submitted to the Order to Show Cause, after which Panel Representative (Staff Attorney) George Birch met with the parties on October 15, 2001, at the Panel’s offices in Washington, D.C. The parties were unable to resolve any issues. The parties each submitted their final offers and supporting statements on the disputed issues. Mr. Birch has reported to the Panel, which has now considered the entire record.

BACKGROUND

    The Employer’s mission is to protect society by confining offenders in controlled environments of prison and community-based facilities that are safe, humane, appropriately secure, and that provide work and other self-improvement opportunities to assist offenders in becoming law-abiding citizens. The Employer has approximately 100 institutions nationwide. The Council of Prison Locals 33 represents approximately 22,000 employees in a nationwide consolidated unit, who occupy a variety of positions, including correctional officers, counselors, case managers and secretaries. The parties’ master collective bargaining agreement (MCBA) has expired, but they have agreed to extend its terms and conditions until a successor agreement is implemented.

ISSUES AT IMPASSE

    The parties essentially disagree over whether: (1) indoor smoking should be prohibited within the FBOP; (2) outdoor smoking areas should be designated at all FBOP facilities and conform to certain minimum standards; and (3) the Employer should reimburse employees participating in smoking cessation programs for the cost of NRT.

1. Indoor Smoking

a.  The Union’s Position

The Union’s proposal includes the following wording:

The following areas will be designated as indoor smoking areas at all medical referral centers, including housing units, and at minimum security institutions, including satellite camps and intensive confinement centers, including housing units, and at all low, medium, high, and administrative institutions, including housing units.

   

a) All single and/or multiple person offices. Ventilation equipment of sufficient capacity will be installed (if not already in place) to insure that non-smoking staff are not exposed to second-hand smoke. This equipment when installed will also aid in the removal of airborne pathogens as well.

b) All control centers, towers, guard huts (upper and lower compound, rear gate, entrance and exit posts, recreation yard, etc.), perimeter patrol vehicles. If necessary and not already in place ventilation equipment of sufficient capacity will be installed (if not already in place) to insure that non-smoking staff are not exposed to second-hand smoke.

c) All housing units regardless if the unit is designated as a non-smoking unit for the inmate population.

d) All training centers will have an indoor designated smoking area for use by staff to be utilized when the outside temperature is at 32 degrees Fahrenheit or lower.

e) All staff lounges.

f) All Unicor factories and warehouses.

g) All institution powerhouses and facilities departments shop areas.

h) All institution commissaries and warehouses.

i) In those areas where staff may not necessarily have an office (such as, but not limited to, Food Service, Education, Recreation Building, Housing Units (to include Special Housing Units) an indoor designated smoking area will be created.

j) Due to the unique configurations and physical layout of Bureau facilities this list is not all inclusive and additional areas may be negotiated by the Union and Management at the local level.

The Panel should not mandate that all indoor smoking be prohibited, primarily because unit employees work in a unique prison setting. In this regard, many employees are locked in their work area for their entire shift without an opportunity to take a break to smoke outdoors. Moreover, the Union’s proposals for indoor smoking are consistent with Executive Order 13058, Protecting Federal Employees and the Public from Exposure to Tobacco Smoke in the Federal Workplace: (1) they would ensure that indoor smoking areas meet exhaust and pressure requirements,(2) and (2) some of the proposed indoor smoking areas constitute "residential accommodations" excepted from coverage of the Order.(3) In view of the unique prison setting, the proposed indoor smoking areas also are excepted from coverage of the Order by section 2(e), which authorizes that "[t]he head of any agency may establish limited and narrow exceptions that are necessary to accomplish agency missions." Further, its proposed indoor smoking areas are consistent with 28 C.F.R. part 551, subpart N, which pertains to smoking areas in FBOP facilities.(4) Finally, if the Union’s approach is adopted, exposure to second-hand smoke would be de minimis, and "until cost studies are done the cost would be de minimis should alterations be made to current structures."

b.    The Employer’s Position

    The Employer urges the Panel to adopt the wording in its Order to Show Cause and "prohibit all indoor smoking within [FBOP] facilities."(5) Such a prohibition is consistent with the spirit of Executive Order 13058, "which has the clear intent to provide a workplace free from second-hand smoke," and proposed 28 C.F.R. part 551, subpart N. Contrary to the Union’s contention, none of the Employer’s facilities constitutes a residential accommodation within the meaning of the Executive Order that would except the facility from the general prohibition on indoor smoking. In addition, the "enormous" expense of conforming indoor smoking areas to the requirements of the Executive Order would be "very detrimental" to the Employer’s budget. In this regard, its Health Systems Administrator estimates that the cost of providing a "negative pressure room . . . is between $8,000 and $25,000 per room." The Union’s proposal would require between 4 and 18 indoor smoking areas, in housing units alone, at each of the FBOP’s 100 institutions nationwide. Finally, the FBOP "is attempting to transition to a smoke-free environment, and intends to prohibit inmates from smoking." In such circumstances, permitting staff who are "locked into units, or otherwise confined to their posts, to smoke indoors" would create a "legitimate security risk."

CONCLUSIONS

    Having carefully considered the evidence and arguments presented by the parties on this issue, we are persuaded that the impasse should be resolved by permitting indoor smoking at FBOP facilities only in perimeter towers and perimeter patrol vehicles when occupied by one person. Preliminarily, as reflected in our Order to Show Cause in this case, the Panel’s goal when resolving impasses involving smoking policy has been, first and foremost, to ensure that the interests of nonsmokers in having a safe and healthy workplace are met. In balancing the equities, the Panel also has sought to provide reasonable accommodations for smokers. In the current circumstances, we acknowledge that FBOP staff work in a unique setting, and that the Employer’s attempt to transition to a smoke-free environment in its facilities would adversely affect numerous employees unable to use outdoor designated smoking areas because of the nature of their duties. In our view, however, the adverse affect on an undetermined number of smokers(6) does not justify the cost of providing indoor smoking areas sufficient to protect the health of nonsmokers. In this regard, the Union’s contention that the expense of its proposal should be viewed as de minimis until cost studies prove otherwise must be rejected. Generally, parties share the burden of establishing the record upon which an impasse is resolved. Even if the Employer has exaggerated its cost estimates for individual indoor smoking areas, the total number of such areas that would have to be created under the Union’s approach renders it an unsuitable alternative for resolving this impasse.

    Given the circumstances which make this dispute so intractable, the Panel has searched hard for any options which would appropriately balance the parties’ apparently irreconcilable interests. In this connection, the record reflects that during the negotiations which led to the filing of the Employer’s request for assistance, it offered to permit indoor smoking at its facilities in perimeter towers and perimeter patrol vehicles when such locations are occupied by one person. Although such accommodations would provide relief only for a limited number of smokers, we conclude that these exceptions to a total ban on indoor smoking are warranted, would not compromise the health of nonsmokers, and comport with the requirements established in Executive Order 13058. Accordingly, we shall order the adoption of wording consistent with the rationale provided above to settle this aspect of the parties’ impasse.

2. Outdoor Smoking

    a. The Union’s Position

    On the specific issue of outdoor smoking, the Union’s proposal is as follows: 

All outside areas are smoking areas for staff except as outlined in a) below.

  

a) Smoking is not allowed in any area which has or may contain any combustible or flammable liquids, gases, vapors, or solid waste. Sufficient non-combustible ashtrays and other provisions for the safe and sanitary disposal of hot ashes and other discarded tobacco products will be provided.

Outside shelters will be provided for staff smoking outside during inclement weather. At a minimum these shelters will be equipped with heating and air conditioning and be able to provide suitable space for up to six persons. They will contain windows on three sides, a roof, and a door and they will be placed in at least the following areas: recreation yard, upper and lower compound, and training center. Due to the unique configurations and physical layout of Bureau facilities this list is not all inclusive and additional areas may be designated by the Union and Management at the local level.

The Panel should adopt a modified version of the wording in its Order to Show Cause because simply imposing the "generic language would necessitate" that the Union again invoke its right to negotiate with the Employer over appropriate arrangements for outdoor smoking areas "which in this case we have already done." Moreover, its proposal is consistent with its right under the MCBA to negotiate minimum standards at the National Level over issues that have nationwide impact, as it has done "in hundreds of previous negotiations on National Program Issuances," and leave further negotiations up to the local level. The minimum standards it has proposed in this case are reasonable. For example, outdoor shelters on the recreation yard, upper and lower compound, and at each facility training center, should have windows because "of the constant need to maintain visual contact with inmates in these areas." Its wording on heating and air conditioning is designed to address the fact that the Union represents employees "in every geographical area of the United States, Puerto Rico, and Hawaii," including locations which "routinely have outside temperatures during the winter months of -20 below zero" or "100-125 degrees during the summer months." Finally, the Union "strongly opposes" the co-mingling of inmates and staff in these smoking shelters, and "proposes separate outdoor smoking areas for inmates." Requiring the shelters to be shared with inmates would place "staff in an unsafe working condition and would present security and other concerns as well."

    b. The Employer’s Position

    The following wording is proposed by the Employer:

   

Prior to designating an outdoor smoking area, the Warden will review the institution’s physical layout and function, with particular attention to:

a. Hazardous environmental factors. Smoking is not allowed in any area which has or may contain any combustible or flammable liquids, gases, vapors, or solid waste.

b. Ventilation and human density during the area’s use. The smoking area’s size and configuration must accommodate sufficiently the number of individuals using it; smoking is not allowed near building entrances, exits or windows consistent with subsection a. of this section.

c. Housekeeping, sanitation, and protection of property. In outdoor areas where smoking is permitted, the institution will provide sufficient non-combustible ashtrays and other provisions for the safe and sanitary disposal of hot ashes and other discarded smoking products.

d. Types of physical barriers and security. Designated smoking areas will be constructed to facilitate quick, voluntary evacuation and allow staff to provide proper security.

e. Activities undertaken in the area. Smoking is not permitted in areas used for physical exercise when the possibility of exposure to second-hand smoke exists.

f. If outside shelters are provided, the location, size, and composition of these shelters should be negotiated with the local Union.

The FBOP "has a unique situation" in that it has proposed regulations governing smoking policy in 28 C.F.R. § 551.162 that would grant its wardens, with the concurrence of a regional director, the discretion to choose not to designate any smoking areas for general use. As such, the wording in the Panel’s Order to Show Cause on the issue of outdoor smoking areas "would be inconsistent with the wording proposed in the C.F.R." In essence, if the Panel declines to follow the wording in the proposed regulations and decides instead to require that outdoor smoking areas be designated at all of its facilities, "all aspects of outdoor shelters should be negotiated at the local level." The local parties "are best able to determine what is feasible for their institution, not persons not familiar with the construction of a particular institution." The Union’s proposal illustrates the importance of authorizing the local parties to handle the issue of outdoor smoking areas in its entirety. It states that outdoor smoking areas should be made available in the upper and lower compounds and recreation yards of each institution, yet there are a number of FBOP facilities where none of these areas exist.

CONCLUSIONS

    After careful review of the record presented by the parties on the issue of outdoor designated smoking areas, we shall order the adoption of the wording in the Order to Show Cause, with the additional proviso that such areas shall be for the exclusive use of employees. In our opinion, neither party has established that the circumstances of this case require a significant departure from our general approach in cases of this type. On the one hand, we believe that the "minimum standards" proposed by the Union would result in more shelters than necessary, and in the excessive expenditure of resources. In this regard, while the Union states that its proposal is intended to address the variations in climate where FBOP facilities are located, read literally, it would require that all outside shelters be heated and air conditioned, regardless of geographical location. The Employer’s proposed regulations, which would grant wardens the discretion to choose not to designate any outside smoking areas for general use, is also defective. As explained previously, the wording in our Order to Show Cause mandates the designation of outdoor smoking as part of a balanced approach that restricts indoor smoking. The Employer has failed to substantiate the need for unfettered discretion in deciding whether any outdoor designated smoking areas should be provided.

    A review of the parties’ positions on the merits of local negotiations over outdoor designated smoking areas suggests that it is necessary to clarify the intent of the wording in the Order to Show Cause on this matter. In particular, the Union appears to believe that its adoption would entitle it to demand a new round of local negotiations over appropriate arrangements for outdoor smoking areas, while the Employer urges the Panel to order that all aspects of outdoor shelters be negotiated at the local level if we determine that the wording in the Employer’s proposed regulations is unwarranted. The intent of the wording to be imposed, however, is to permit the Employer to designate outdoor smoking areas which it believes meet the requirements specified therein, i.e., reasonable accessibility to employees and a measure of protection from the elements. No further negotiations are required. As we have explained in numerous previous cases where identical wording has been imposed, any local disputes over the accessibility or adequacy of a designated area may be resolved through the parties’ negotiated grievance procedure.(7) In our view, it would be inconsistent with the statutory requirement of an effective and efficient Government to authorize local bargaining over outdoor designated smoking areas at the FBOP’s approximately 100 facilities where the matter has already been exhaustively negotiated at the national level. Moreover, the Panel does not have the resources to handle the potential impasses that may result. Finally, because we are persuaded for safety reasons that employees should not be required to share designated outdoor areas with inmates, the wording also shall specify that such areas are for the exclusive use of employees.

3. Nicotine Replacement Therapy

    a. The Union’s Position

    The Union has proposed a smoking cessation program that would require the Employer, among other things, to provide "a 6 to 10 week supply of nicotine replacement patches" or inhalers. Thus, its final offer differs from the wording in the Order to Show Cause, which would require the Employer to provide one-time payment to each employee who participates in NRT for an 8-week supply of either skin patches or nicotine chewing gum. The Union also requests that the wording in this portion of the Order to Show Cause be changed to: (1) provide for a smoking cessation program of 180 days instead of 60 days; (2) drop the condition of "workload permitting" for attendance on official time; and (3) include wording mandating the Employer "to allow every staff member wishing to participate to so do." In addition, the Panel should "retain control over this issue until the program is completed."

    The Panel’s "standard" wording should be changed because the Employer will use the "workload permitting" condition as a basis for routinely denying staff the opportunity to participate in a smoking cessation program. In this connection, the Union has filed numerous local grievances and one at the national level regarding the Employer’s practice of repeatedly vacating posts and working with much less staff than authorized by Congress. By dropping that condition, and expanding the time during which smoking cessation programs would be provided to 180 days, the Employer "would have no problem allowing all staff to participate." Finally, in response to any contention that appropriated funds may not be expended for purposes of providing NRT, "the Comptroller General of the United States (B-231543, dated February 3, 1989) held that under 5 U.S.C. 7901, Federal agencies have the authority to use appropriated funds to pay the costs incurred by employees participating in agency-sponsored smoking cessation programs."

    b. The Employer’s Position

    The Employer proposes to "provide a smoking cessation program for all interested staff. However, the agency will not reimburse staff for [NRT]." Smoking is "clearly a personal choice," and NRT is a "personal convenience method/item used for the cessation of smoking." In addition to the fact that FBOP "is not appropriated money from Congress to medicate staff in any fashion similar to convenience items," from a health perspective there are liability issues if it dispenses NRT without an understanding of the employee’s health status.

CONCLUSIONS

    Upon thorough examination of the parties’ supporting evidence and arguments on the issue of whether the Employer should pay for NRT in connection with its smoking cessation program, we conclude that a slightly modified version of the wording in the Order to Show Cause should serve as the basis for resolving their impasse. The modifications are intended to ensure that the Employer would pay for NRT only if such costs are not covered by an employee’s health insurance, and to clarify the intent of our initial wording. Both parties acknowledge that unit employees may be employed in, or restricted to, a nonsmoking area for extended periods of time.(8) We are persuaded that in such unique circumstances, where the Employer is movingto severely restrict indoor smoking and access to outdoor designated areas may be of limited value, the Employer should be obligated to pay for therapies which may be effective in getting interested smokers to quit the habit. Given the lack of evidence in the record on the number of employees who smoke, or whether their health insurance would cover the benefit, any concerns regarding the costs of providing NRT for an 8-week period would appear to be speculative. As to the Employer’s liability and health concerns, nothing in the wording to be ordered precludes it from requiring health information from smokers before they receive NRT.

    Finally, the Union’s requests that the wording in the Order to Show Cause be changed to delete the condition "workload permitting," and to provide for a smoking cessation program of 180 days, must be rejected. Permitting the Employer to determine when interested smokers can be released from work to attend smoking cessation classes ensures that its right to assign work is not adversely affected. In addition, as we shall clarify in the Order below, it is not our intent to specify the duration of the Employer’s smoking cessation program, but only to provide a reasonable period of time during which employees who smoke are provided an opportunity to sign up for the program. In our view, 60 days provides a reasonable period of time for this purpose.

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 5 C.F.R. § 2471.11(a) of its regulations, orders the following:

1.  Indoor Smoking

    The parties shall adopt the following wording:   

Indoor smoking shall be permitted only in perimeter towers and perimeter patrol vehicles when occupied by one person.

2.  Outdoor Smoking

The parties shall adopt the following wording:

The Employer shall designate outdoor smoking areas which (a) are reasonably accessible to employees and (b) provide a measure of protection from the elements. The designated outdoor smoking areas shall only be used by employees.

3.  Nicotine Replacement Therapy 

The parties shall adopt the following wording:

For a period of 60 days, interested employees shall have the opportunity to sign up for a smoking cessation program, provided by the Employer at no cost to the employees, who shall be on administrative leave, workload permitting, to attend smoking cessation classes that are scheduled during their work time. This program will include nicotine replacement therapy (NRT), using skin patches or nicotine chewing gum. To the extent not covered by health insurance, the Employer will provide a one-time payment to each employee who participates in the NRT, for an 8-week supply of either skin patches or nicotine chewing gum. In addition, the program will include informational literature about the benefits of quitting smoking and counseling, as needed.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

November 8, 2001

Washington, D.C.

 

1.The parties were ordered to show cause why the following wording adopted by the Panel in other cases should not also be mandated to settle their impasse: 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. 3. A smoking cessation program shall be provided for a period of 60 days, at no cost for interested employees, who shall be excused from work on official time, workload permitting, to attend smoking cessation classes that are scheduled during their work time. This program will include nicotine replacement therapy (NRT), using skin patches or nicotine chewing gum. The Employer will provide one-time payment to each employee who participates in the NRT, for an 8-week supply of either skin patches or nicotine chewing gum. In addition, the program will include informational literature about the benefits of quitting smoking and counseling, as needed.

2.Pursuant to section 2(a) of the Executive Order, the Order’s general policy prohibiting indoor smoking “does not apply in designated smoking areas that are enclosed and exhausted directly to the outside and away from air intake ducts, and are maintained under negative pressure (with respect to surrounding spaces) sufficient to contain tobacco smoke within the designated area.”

3.Section 2(b) of the Order provides that it does not apply “to any residential accommodation for persons voluntarily or involuntarily residing . . . in a building owned, leased or rented by the Federal Government.”

4.Section 551.163(b) provides, as follows: At all low, medium, high, and other administrative institutions other than medical referral centers, the Warden . . . may, but is not required to, designate a limited number of indoor smoking areas where the needs of effective operations so require, especially for those who may be employed in, or restricted to, a nonsmoking area for an extended period of time. In May 1999, the Employer proposed a substitute part 551, subpart N, which would delete the current wording of § 551.163(b). The proposed rules, however, have not yet been finalized.

5.During the negotiations that preceded its request for Panel assistance the Employer proposed to permit indoor smoking areas “in perimeter towers and perimeter vehicles when occupied by only one person,” and that “[i]f other indoor smoking areas are considered by the Warden, the location of these areas should be negotiated at the local level.”

6.Given the potential impact that the resolution of this dispute could have on FBOP and unit employees, the record established by the parties appears surprisingly light on pertinent information, such as a reliable