DEPARTMENT OF THE NAVY NAVAL AIR TEST CENTER NAVAL AIR STATION PATUXENT RIVER, MARYLAND and LOCAL 1603, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL





In the Matter of

DEPARTMENT OF THE NAVY )

NAVAL AIR TEST CENTER )

NAVAL AIR STATION )

PATUXENT RIVER, MARYLAND )

)

and ) Case No. 91 FSIP 251

)

LOCAL 1603, AMERICAN FEDERATION )

OF GOVERNMENT EMPLOYEES, AFL-CIO )



DECISION AND ORDER



Local 1603, American Federation of Government Employees, AFL-CIO (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 Navy, Naval Air Test Center, Naval Air Station, Patuxent River, Maryland (Employer).



After investigation of the request for assistance, the Panel directed the parties to meet informally with Staff Associate Ellen J. Kolansky for the purpose of resolving the issues at impasse concerning a smoking policy. The parties were advised that if no settlement were reached, Mrs. Kolansky was to notify the Panel of the status of the dispute, including the parties' final offers and her recommendations for resolving the matter. After considering

this information, the Panel would take whatever action it deemed appropriate to resolve the impasse.



Mrs. Kolansky met with the parties on October 4, 1991, but the issues were not resolved during the conference. She reported to the Panel on the dispute based on the record developed by the parties, including written statements submitted following the conference. The Panel has now considered the entire record, including her recommendations for settlement



BACKGROUND



The Employer provides testing and evaluation of Naval aircraft and related systems. The Union represents approximately 1,500 bargaining-unit employees who work in a variety of support positions such as welder, airplane mechanic, and housekeeper. These

civilian employees make up about one-third of the base population; the rest are equally divided between the military and private contractors. Negotiations for a successor local agreement currently are close to completion.



The dispute arose when the Employer notified the Union that with minor exceptions it wanted to ban indoor smoking in 116 of the

buildings at the facility. Currently, employees are permitted to smoke in designated indoor areas in accordance with supervisory approval. Also, the Employer provides smoking cessation classes which employees may attend.



ISSUE AT IMPASSE



At its core, the dispute concerns whether smoking will be totally banned indoors or permitted in certain designated areas.



1. The Union's Position



Essentially, the Union proposes that a procedure be established whereby: (1) smoking would be permitted inside designated areas of buildings with an ascertained air flow rate sufficient to protect nonsmokers from the effects of secondhand smoke, and (2) the Employer would consult with designated Union representatives regarding the location of new smoking areas. In addition: (1) employees would be permitted to repeat costfree smoking cessation classes on administrative leave until successful;



(2) no discipline would be given for violations of the policy within the first year, and there would be gradual and progressive discipline thereafter; and (3) all work areas both inside and out would be free of airborne Pollutants and contaminants.



It asserts that it would be unreasonable to reject the capacity of existing systems to exhaust environmental tobacco smoke

(ETS) without conducting a preliminary investigation of their

effectiveness or giving consideration to upgrading them. Such summary judgment would unnecessarily deny smokers the continued comfort of indoor smoking areas. For example, it claims that air exchange equipment sufficient to remove ETS is located at the welders' worksites and in the photographic laboratory.



Although it agrees with the Employer that nonsmokers should not be exposed to ETS, it also argues that focusing solely on ETS may be an overly narrow, though politically correct, posture. Indoor air should be tested for other potentially hazardous pollutants emanating from the use of cleaning products, dust, incineration, etc. If found, the air should be cleansed of such chemicals. It notes that automobiles parked near a smokestack on the base suffered severe paint damage due to pollution which also might be affecting the indoor air that employees breathe.



As to accommodations for smokers, it argues that the location of outdoor shelters could adversely affect performance should they be too far from employees' worksites and not protect them from cold and rainy weather. Furthermore, the Employer's self-help program for employee-constructed shelters is practically useless since affected employees do not have the requisite carpentry skills. Finally, although it believes that employees should be permitted administrative leave to take as many free smoking cessation classes

as needed to assist their overcoming such habits, it also contends that employees born in this tobacco-raising community are unlikely to quit smoking. As a result, it predicts that enforcement of an indoor ban will prove difficult.



2. The Employer's Position



It proposes a comprehensive smoking instruction that would ban smoking in all indoor areas, except for those occupied by three groups specifically exempted by mutual agreement.l It provides for: (1) implementation 2 weeks after the effective date; (2) directors or department heads to designate outdoor smoking areas; (3) protection outdoors to consist of existing overhangs or preapproved, employee-built structures, unless department heads or directors undertake such projects themselves; (4) smoking cessation programs with administrative leave for the first complete series of classes only; (5) grievance rights; and (6) designated smoking areas in the military clubs.



The Employer urges that smoking be banned throughout the facility. It argues that since ETS is a known hazard and discussed as such in an increasing number of Panel decisions, moving designated smoking areas outside is the best available means to protect employees' health. To counter the Union's position on continuing indoor designated smoking areas, it cites the results of a survey of 10 buildings conducted by its safety department that indicated that "no suitable location with proper [ventilation] or filtration was found without exposure to the entire building[']s occupants." Furthermore, it has received many complaints about smoking from nonsmokers and been subject to one or two lawsuits by former employees alleging a link between workplace smoking and

their subsequent illnesses.



Regarding designated outdoor areas, it believes that existing overhangs at the egress to most buildings are adequate to protect smokers from inclement weather in the mild climate where the installation is situated. In locations without such structures, it might consider erecting minimal outdoor shelters or approving construction plans for employee-built and financed shelters (i.e..



1 These groups include employees working at the fuel farm, firefighters in bays at the firehouse, and police officers in their vehicles. the self-help plan). It also asserts that the walk to proposed outdoor smoking areas is a minor inconvenience. Finally, to aid employees who are adjusting to the new policy, it would continue to offer smoking cessation classes, including some workplace presentations to explain the kinds of programs offered. Permitting employees to attend more than one complete series during duty hours, however, might encourage attendance simply to avoid work.



CONCLUSIONS



Upon careful consideration of the arguments and evidence in this case, we believe that the parties should adopt a compromise provision to resolve the issues in dispute. Under the compromise, indoor smoking is to be banned in the 116 buildings occupied by bargaining-unit employees. This would include most but not all of the terms of the Employer's proposed smoking instruction. A provision to require the Employer to provide a sufficient number of outdoor-smoking areas that are reasonably accessible to employees and provide a reasonable amount of protection from the elements, shall be added. As to smoking cessation, we shall adopt the Employer's provision and add wording developed during the informal conference permitting a limited number of worksite presentations to explain the cessation program to employees. Lastly, items previously agreed to by the parties shall be incorporated into the agreement.



In our view, curtailment of indoor smoking is preferred because it would better protect the health of employees from the known hazards of ETS. The number of complaints by nonsmokers, acknowledged by the Union, underscores the need for such a measure. Furthermore, notwithstanding the Union's position to the contrary, currently available technology does not appear to make exhausting such pollutants through the air-handling systems practicable.2



As to indoor air quality generally, we recognize that the

concerns expressed by the Union parallel heightened public awareness of indoor air pollution. Considerable debate prevails, however, about the correlation between indoor air contaminants and poor health, the levels of contaminants that may be unhealthy, and the outdoor air content of supplied air.3 In view of the 2 See

Department of Veterans Affairs. Veterans Health Services and Research Administration. Washington, D.C. and National VA Council.

American Federation of Government Employees, AFL-CIO, Case No. 89 FSIP 198, at 9, (1990), Panel Release No. 294.



3 Legislation introduced by Rep. Joseph P. Kennedy II (D-Mass), the Indoor Air Quality Act of 1991 (HR 1066), was the subject of hearings before the House Education and Labor Subcommittee on Health and Safety. The bill would "set building ventilation system standards and provide nearly $53.5 million in

vagueness of the Union's proposal and the lack of articulated support in the record, we find that we are unable to adopt this part of its proposal. We also are persuaded, however, that the Employer's proposal on outdoor areas adjacent to buildings is deficient. For this reason, we will continue the approach taken in previous decisions that requires some outdoor accommodation for smokers affected by an indoor smoking ban. To leave such provisions to the whim of the director or department head is unsatisfactory. Furthermore, we agree with the Union that placing the burden on employees to construct their own shelters through the "self-help" plan is inappropriate. For these reasons, we will order the Employer to withdraw the portion of its proposal that addresses the self-help plan.



On the issue of administrative leave for participation in the

smoking cessation program, we believe that such programs are an aid to employees who have decided to stop smoking, but the Union's proposal is excessive. It fails, for example, to place some responsibility on the employee by requiring that further efforts be on earned annual leave. For this reason, we shall adopt the Employer's proposal on smoking cessation. Finally, in our view, those sections dealing with smokers' policing of designated smoking areas, and time away from work for smoking, should be omitted. As to the former, we anticipate difficulty in assigning responsibility for clean-up since nonbargaining-unit employees or visitors likely also would use the outdoor designated areas. In regard to the latter, no evidence was presented during the informal conference to indicate a problem in this area. Accordingly, we conclude that the Employer should withdraw those portions of its proposal.



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 the 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 adoption of the following wording:



Federal spending for research and regulation at the state and Federal level." 'Sick Building' Syndrome: Indoor Air Bill Backed by Labor Opposed by NIOSH at House Hearing, 29 GERR 898, at 899 (1991). The Occupational Safety and Health Administration (OSHA) also will take up the question of regulating indoor air pollution in the workplace in the Spring of 1992. "The regulations would apply to indoor air in Federal agency workplaces as well as other sites, but OSHA lacks enforcement power over the Federal worksites." Health And Safety: OSHA Will Decide Next Spring Whether to Regulate Indoor Air Pollution at Work, 29 GERR 1303

( 1991 ) .



I. Smoking policy:



1. Purpose. To establish policy and guidelines for the NAVAIRTESTCEN/NAS smoking control and education program.



2. Cancellation. NATCINST 6110.2



3. Background. The Surgeon General has determined that tobacco smoke is the single most preventable cause of illness and death. The Environmental Protection Agency has found that involuntary/passive smoking poses a significant health risk. Airborne contaminants may cause eye, upper respiratory and skin irritation, tiredness, headaches and nausea. As such, smoking in

buildings in which NAVAIRTESTCEN/NAS employees work is an unacceptable and avoidable health hazard. Employees have the right

to use tobacco products in accordance with this policy. Management

will treat employees without discrimination based on their use or

nonuse of tobacco products.



4. Policy. The policy creates and maintains a healthier work environment, one relatively free of airborne contaminants. The policy is straightforward and easy to apply, and maintains a balance between smokers' and nonsmokers' rights. There will be no smoking permitted inside any building staffed by NAVAIRTESTCEN/NAS personnel. This policy applies regardless of the building's location, configuration, rank or grade of the smoker, etc. Reference (a) applies in the event of violations. Furthermore, the policy bans tobacco use in the following locations as well:



a. Auditoriums, theaters, taxis, official buses or vans, or other government vehicles.



b. Daycare facilities, the recreation center and any youth recreation centers.



Management will take the following steps within 2 weeks of the

effective date of this instruction:



c. Remove ashtrays or other receptacles from all inside spaces.



d. Place ashtrays or other appropriate receptacles at outdoor designated smoking areas.



5. Smoking Areas. NAVAIRTESTCEN Directors/NAS Department Heads

shall designate outside areas where employees may smoke. Management will consider the following types of factors when designating the locations:



a. Lost productive time spent by smokers going to and

from the designated areas.



b. The negative appearance of employees smoking at the

entrance to NAVAIRTESTCEN/NAS buildings.



c. Safety concerns.



d. The need to maintain a neat appearance within the

complex.



6. Smoking Cessation Program. The Civilian Employee Assistance Program offers periodic smoking cessation classes. Management will advise smokers of scheduled programs and encourage them to participate. Management will not pressure employees to stop smoking or participate in such cessation classes.



a. Civilian employees may also take smoking cessation class offered by the Family Service Center on a space available basis.



b. An employee wishing to participate in the smoking cessation program may participate on official time, subject to workload, on a one time basis only. Employees wishing to repeat the program must take annual leave to cover their absence. If an employee is prevented from completing the smoking cessation program due to

a management directed work assignment, the employee may repeat the course with no charge to leave.



c. A civilian employee who refrains from smoking for 1 year following their completion of the smoking cessation course may contact the Labor and Employee Relations Division to obtain a

certificate attesting to this fact.



d. The naval hospital will prepare and present a short talk/presentation on smoking cessation with information and referral. The presentation will be made at the Department/ Directorate level on an announced, scheduled basis.



7. Eating Facilities. The Officers Club, Chief Petty Officers Club and Enlisted Club shall clearly designate "Smoking" areas. Management may set up such areas if it determines adequate ventilation exists to provide nonsmokers with a healthy environment.



8. Grievances. Bargaining-unit employees may grieve alleged violations of their conditions of employment established by this instruction via the negotiated grievance procedure. Nonbargaining-unit employees may grieve via the administrative grievance procedure.