DEPARTMENT OF DEFENSE NATIONAL GUARD BUREAU IOWA NATIONAL GUARD JOHNSTON, IOWA and LOCAL 2955, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF DEFENSE
LOCAL 2955, AMERICAN FEDERATION
Case No. 02 FSIP 160
DECISION AND ORDER
Local 2955, American Federation of Government Employees, AFL-CIO (Union) and the Department of Defense, National Guard Bureau, Iowa National Guard, Johnston, Iowa (Employer) 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 dispute, which concerns exempting the after-hours Service Club from the general ban on indoor smoking, should be resolved through an Order to Show Cause.(1) After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.
The Employer performs a training mission to keep the F-16 Fighting Falcon aircraft in the air. Employees also participate in northern and southern watch assignments involving Turkey, Iraq, and Afghanistan. In addition, since September 11, 2001, its secondary mission became a 24-hour-per-day, 7-day-a-week alert for the defense of North America. The Union represents 174 bargaining-unit employees who work as jet and aircraft mechanics, avionics technicians, sheet metal workers, armorers, etc., at grades GS-5 through -9 and WG-8 through -12. The parties have nearly completed bargaining over a successor master collective bargaining agreement (CBA); implementation awaits the resolution of the instant issue, the last article for that agreement.
ISSUE AT IMPASSE
The parties basically disagree over
whether indoor smoking should continue to be permitted at the Service Club,
co-located with the Headquarter’s Wing Classroom.
POSITIONS OF THE PARTIES
1. The Employer’s Position
The Employer would have the Panel impose the wording in its Order to Show Cause to resolve the parties’ dispute, with the addition of the following section on smoking cessation:
Information will be made available to employees concerning smoking cessation assistance, and those interested will be allowed to attend one smoking cessation course free of charge and on duty time. Employees may attend other courses but on their own time and at their own expense.
The Employer’s proposal is consistent with a current Government-wide regulation, 41 C.F.R. 101-20.105-3; Department of Defense Instruction 1010.15 (January 2, 2001); and Executive Order (E.O.) 13058, which prohibit "the smoking of tobacco products  in all interior space owned, rented or leased by the executive branch of the Federal Government." An exception is made for:
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.
With respect to the exception to the general prohibition against indoor smoking, "conditions that would allow indoor smoking do not exist at the 132nd Fighter Wing Headquarters Classroom and would be cost prohibitive to incorporate." In its previous decisions, the Panel has permitted smoking in facilities that are used exclusively as clubs;(2) the Service Club is different from indoor areas where the Panel imposed terms permitting smoking, however, because it serves as a classroom during the day.
2. The Union’s Position
The Union’s proposal reads:
Section 1. It is agreed that all employees of the 132nd FW Iowa Air National Guard are encouraged, through voluntary efforts, to combat the adverse effects of tobacco through such means as smoking cessation programs, to abandon the habit. Section 2. Smoking indoors will only be allowed in designated areas of the Service Club. Designated outside smoking shelters shall be provided by the base. Smoking will not be allowed in any other building/facility. Section 3. Employees who fail to properly dispose of smoking materials or "byproducts" caused by the use of smokeless tobacco are subject to appropriate disciplinary action.
Smoking should continue in designated areas of the Service Club, a recreational facility that sells alcoholic beverages. Those who use the Club, which is open for 2 hours after the regular business day, Tuesdays through Fridays, do so voluntarily; among regular patrons, about 75 percent are smokers. Previous Panel decisions have permitted indoor smoking in situations like this where no one is involuntarily subjected to second-hand smoke.(3) In addition, although the Service Club is a multiple use facility, 12 hours elapse before the space might be used as a meeting room. Furthermore, few meetings are held there other than the monthly Union meeting. As an alternative, the Service Club could be moved to a different location where it would be a single use facility.
Having carefully considered the positions of the parties, we conclude that neither has shown cause why the wording adopted by the Panel in numerous previous decisions addressing the issue of indoor smoking should not be imposed to resolve their dispute.(4) In this regard, there is no evidence in the record that the Service Club currently meets the requirements for an exception to the general prohibition on indoor smoking specified in Government-wide regulations and E.O. 13058, and we are unwilling under the circumstances presented to order the Employer to spend funds to ensure that it meets those requirements.(5)
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 the 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 hereby orders the following
1. All indoor smoking shall be prohibited, and
2. The Employer shall designate outdoor smoking areas which are (a) reasonably accessible to employees and (b) provide a measure of protection from the elements.
By direction of the Panel.
H. Joseph Schimansky
December 3, 2002
1. The parties were directed to show cause why the Panel should
not impose wording previously adopted to resolve other disputes on smoking:
1. All indoor smoking shall be prohibited, and
2. The Employer shall designate outdoor smoking areas which are (a) reasonably accessible to employees
and (b) provide a measure of protection from the elements.
2. The Employer cites Department of the Air Force,
Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio and Local F-88, International
Association of Fire Fighters, AFL-CIO, Case No. 01 FSIP 69 (May 24, 2001), Panel Release No. 440;
Department of the Army, Army Corps of Engineers, Memphis District, Memphis, Tennessee and Local 259,
National Federation of Federal Employees, Case No. 98 FSIP 159 (January 22, 1999), Panel Release No. 416;
2. The Employer cites Department of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio and Local F-88, International Association of Fire Fighters, AFL-CIO, Case No. 01 FSIP 69 (May 24, 2001), Panel Release No. 440; Department of the Army, Army Corps of Engineers, Memphis District, Memphis, Tennessee and Local 259, National Federation of Federal Employees, Case No. 98 FSIP 159 (January 22, 1999), Panel Release No. 416; and