DEPARTMENT OF THE AIR FORCE K.I. SAWYER AIR FORCE BASE K.I. SAWYER AFB, MICHIGAN and LOCAL 1256, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE AIR FORCE
K.I. SAWYER AIR FORCE BASE
K.I. SAWYER AFB, MICHIGAN
LOCAL 1256, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
Case No. 90 FSIP 143
DECISION AND ORDER
Local 1256, National Federation of Federal Employees (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of the Air Force, K.I. Sawyer Air Force Base, K.I. Sawyer AFB, Michigan (Employer).
The Panel determined that the impasse 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. Submissions were made pursuant to these procedures and the Panel has considered the entire record.(1)
The Employer, which is part of the Strategic Air Command, maintains flight preparedness for two squadrons of B-52 and KC-135 aircraft. The Union represents two bargaining units, one consisting of approximately 350 General Schedule and Wage Grade employees who hold positions in the trades and crafts and in accounting and engineering, and a second bargaining unit of approximately 200 nonappropriated-fund employees who work in the clubs, cafeteria, recreational, and service facilities the base. The parties have entered into a collective-bargaining agreement which is in effect until May 14, 1992.
ISSUES AT IMPASSE
The parties disagree over the base smoking policy which was implemented by the Employer in January 1990. The Employer also raises a threshold question concerning its obligation to bargain over the matter.
I. The Jurisdictional Question
The Parties' Contentions
The Employer contends that the Panel should decline jurisdiction. Essentially, it takes the position that it has no obligation to negotiate over a smoking policy because the Union previously waived its right to bargain over the matter. In this regard, the Union refused to bargain over the proposed change when notice was provided by the Employer.
The Union urges the Panel to retain jurisdiction and resolve the dispute on the merits. Although the Union previously contended that it had no duty to bargain over a smoking policy because of the existence of a pre-existing agreement between the parties on smoking, it now has abandoned that claim. There has been no waiver by the Union of any bargaining right concerning a smoking policy and its position during negotiations and mediation to maintain the status quo should not be construed as one.
In considering duty-to-bargain questions raised by the parties, the Authority has stated that the Panel is to be guided by applicable Authority precedent. Commander, Carswell Air Force Base, Texas and American Federation of Government Employees Local 1364, 31 FLRA 620 (1988). On the issue of waiver of statutory rights to bargain over conditions of employment, the Authority has held that a waiver of such a right must be "clear and unmistakable." Department of the Air Force Scott Air Force Base; Illinois and National Association of Government Employees, Local R7-23, 5 FLRA 9, 11 (1981). Furthermore, the Authority has held that a waiver may be established by either (1) express agreement, or (2) bargaining history. Internal Revenue Service and National Treasury Employees Union, 29 FLRA 162, 166 (1987).
In applying applicable Authority case law to the question of whether the Union has waived its right to bargain over a smoking policy, we find based upon the record before us, that there is no evidence that the Union clearly and unmistakably waived its right to bargain through either an express agreement or bargaining history. Rather, the Union merely took a position during negotiations and mediation that the then-existing smoking policy should be retained. In our view, an argument to maintain the status quo with respect to a condition of employment is not tantamount to abandoning a right to bargain. Accordingly, the matter is properly before the Panel and we shall proceed to address the issue on the merits.
II. Smoking Policy
a. The Employer's Position
Under the Employer's proposal, smoking would not be permitted in any building except the following: designated smoking areas in the NCO open Mess; Officers' Open Mess; the Bowling Center; and military family housing(2) and dormitory rooms only with the occupant's permission. Additionally, within mission requirements, employees wishing to enroll in the base's smoking cessation classes during duty hours would be excused without charge to leave.
The Employer contends that restricting smoking to only a few designated areas would help minimize the harmful effects of second-hand tobacco smoke on nonsmokers. Smoking in Government housing should not be prohibited since occupants should have at least some degree of freedom of choice concerning smoking in their living quarters. Moreover, dormitory rooms each have outside ventilation via an exhaust fan in the bathroom and all have exterior windows which open. The Bowling Center, Officers' Open Mess, and the NCO Open Mess have large ventilation/exhaust systems in the kitchen areas that allow for a complete change of air each hour. The Bowling Center also is equipped with an air purification system to help eliminate smoke, and the NCO Open Mess has a large air conditioning system which draws in outside air as required.
Since military personnel already are required to abide