DEPARTMENT OF MILITARY AFFAIRS ILLINOIS ARMY NATIONAL GUARD SPRINGFIELD, ILLINOIS and LOCAL 1655, NATIONAL FEDERATION OF FEDERAL EMPLOYEES

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL





In the Matter of )

DEPARTMENT OF MILITARY AFFAIRS )

ILLINOIS ARMY NATIONAL GUARD )

SPRINGFIELD, ILLINOIS )

and )

LOCAL 1655, NATIONAL FEDERATION OF )

FEDERAL EMPLOYEES )

Case No. 91 FSIP 118



DECISION AND ORDER



The Department of Military Affairs, Illinois Air National Guard, Springfield, Illinois (Employer), 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 Local 1655, National Federation of Federal Employees (Union).



The Panel determined that the impasse concerning smoking policy should be resolved pursuant to written submissions from the parties, with the Panel to take whatever action it deemed appropriate to resolve the dispute. Submissions were made pursuant to these procedures and the Panel has considered the entire I record.



BACKGROUND



The Employer's mission is to provide operational military units to support the United States Army in time of war or emergency, and military support to civil defense authorities. The bargaining unit, one of five affected by the Employer's proposed smoking policy within the Illinois National Guard, consists of

approximately 134 technicians who work primarily as clerks and mechanics at one of 12 buildings in the Chicago, Illinois, metropolitan area. The parties' collective bargaining agreement expired in 1981, and they are currently negotiating over a successor.



The instant impasse arose following the Employer's issuance

of a memorandum establishing a new smoking policy governing Illinois National Guard facilities.



ISSUES AT IMPASSE



The parties are at impasse over a variety of issues in connection with smoking policy, but their primary disagreement concerns whether smoking will be limited to one designated area

per building.



1. The Union's Position



The Union offers numerous proposals relating to the smoking

policy, among them, that there be: (1) working smoke breaks;(2) smoking in military and Government vehicles; (3) smoking areas in private offices, and at desks and individual workstations; (4) air purifiers for each smoking area provided by the Employer; (5) floor-to-ceiling partitions between smoking and nonsmoking areas, when requested by the Union or employees; (6) heated and air conditioned designated outside smoking shelters provided by the Employer, protected from all elements, containing lounge chairs, ash trays, and vending machines, where there is a total ban on smoking in any area; (7) smoking in all restrooms, corridors, lobbies, conference rooms, and classrooms, unless the Employer can provide "equal areas as listed above;" (8) advice given to smokers from health care providers during physical and dental examinations provided by the Employer on how to quit smoking, and smoking cessation programs available to smokers who wish to enter them, with all costs borne by the Employer, and any time required for their use during duty hours not charged to the employee; and (9)

smoking and nonsmoking break/lunch rooms in each building used

by employees, with appropriate ventilation.



Its proposed smoking policy is "not inconsistent" with law, Government-wide rules or regulations, or agency regulations. On the other hand, there is no "compelling need" for the Employer's policy "since no large number of employees work in one given area." In this regard, the Union has never been provided with any studies showing tobacco smoke to be a hazard in the workplace or that employees have been absent from work because of it. In fact, in only "4 percent of 223 General Services Administration (GSA) buildings in a 6-year period," and 4 out of 203 buildings in a National Institute of Occupational Safety and Health (NIOSH) study, has tobacco smoke been found "to be the main cause of indoor air problems.l/'' Thus, if the Employer were really trying to protect employees' health, it would address other common airborne hazards, many of which cause reactions similar to second-hand tobacco smoke, by installing proper ventilation systems in its buildings. Finally, the Employer's proposed policy would establish one designated smoking area for each building "which in most cases is the break/lunch room." Since all employees, including nonsmokers, use these rooms, "the Employer is not trying to protect their health."



2. The Employer's Position



In essence, the Employer proposes that the status quo of smoking at will be changed by: (1) giving Senior Installation Commanders or Facility or Armory Managers the final authority to designate one smoking area in each building; (2) prohibiting smoking in all areas not otherwise designated as smoking areas, including military and Government vehicles; (3) reasonably accommodating smokers in the administration of the policy, as long as such accommodations do not unduly interfere with its operations, e.g., allowing them to divide authorized breaks into two or three segments for each half day so they may smoke; and (4) providing

reasonable access to smoking cessation classes sponsored in whole or in part by the Employer, as long as such access does not unduly interfere with its operations.



Establishing one designated smoking area for each building is part of the Employer's overall fitness program for its technicians, who are required by the National Guard Technicians Act2/ to maintain military membership in a National Guard unit. Further, its proposed smoking policy is reasonable because it has an obligation to protect the health of all employees, both smokers and nonsmokers, particularly in view of the previous reports by the Surgeon General concluding that "smoking remains the single most important preventable cause of death in our society,2/" and involuntary smoking is a cause 1/ The Union provides no documentary evidence to support this statement.



2/ 32 U.S.C. section 709 (1988).



3/ Reducing the Health Consequences of Smoking -- A Report of the Surgeon General. DHHS Pub. No. (CDC) 90-8416, 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. 1989.



of disease in healthy nonsmokers.4/ Since cigarettes and other forms of tobacco are addicting, it is willing to assist employees who desire to quit smoking by sponsoring smoking cessation programs. It also agrees to be flexible in accommodating individual smokers in the administration of the policy.



In contrast, "it appears the Union is only concerned with representing the smokers." Its proposal would allow "virtually unrestricted smoking in all buildings and Government vehicles," and require an expenditure of funds not available at this time. Finally, while the Employer would prefer to eliminate smoking from all of its facilities, it does not have the funds to establish suitable outside smoking shelters. Thus, it considers one designated smoking area per building "to be in the best interests of both smokers and nonsmokers."



CONCLUSIONS



Having considered the evidence and arguments in this case, we

conclude that neither party's final offer adequately would resolve the dispute. On the one hand, the Union's proposal would require an excessive level of expenditures without solving the underlying problem of protecting both smokers and nonsmokers from the proven harmful effects of environmental tobacco smoke. On the other, although we view the Employer's proposal as an incremental approach to establishing a smoke-free workplace, it would allow smoking in one designated area per building which, as the Union points out, is likely to be in break or lunch rooms used by both smokers and nonsmokers. Thus, it too falls short of the goals espoused in the Surgeon General's 1986 Report that employees be provided with a healthy work environment, free from the contaminants of second-hand tobacco smoke.5/



For these reasons, we shall order that the Employer's proposal be modified to eliminate the designation of one indoor smoking area per building. We are persuaded, however, that there should be some

accommodation for those who choose to continue to smoke. Accordingly, our Order also shall specify 4/ 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.





5/ See footnote 4.





that the Employer designate outdoor smoking areas which (1) are reasonably accessible to employees, and (2) provide a measureof 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. In any event, such inconveniences should be mitigated considerably by the Employer's offer to be flexible with regard to smokers in the administration of the policy. Finally, while the Employer has agreed to provide reasonable access to smoking cessation classes, the precise terms of that part of its proposal are unclear. Thus, we also shall modify this part of its final

offer by ordering that it sponsor free smoking cessation programs, upon a showing of sufficient interest, during working hours which employees may attend, at their election, while on administrative leave. This also should facilitate employee adjustment to the ban on indoor smoking.



ORDER



Pursuant to the authority vested in it by section 7119 of

the Federal Service Labor