DEPARTMENTS OF THE ARMY AND AIR FORCE ARMY AND AIR FORCE EXCHANGE SERVICE UTAH EXCHANGE HILL AIR FORCE BASE, UTAH and LOCAL 1592, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO



United States of America



BEFORE THE FEDERAL SERVICE IMPASSES PANEL





_______________________________________

)

In the Matter of )

)

DEPARTMENTS OF THE ARMY AND AIR FORCE )

ARMY AND AIR FORCE EXCHANGE SERVICE )

UTAH EXCHANGE )

HILL AIR FORCE BASE, UTAH )

)

and ) Case No. 92 FSIP 26

)

LOCAL 1592, AMERICAN FEDERATION OF )

GOVERNMENT EMPLOYEES, AFL-CIO )

_______________________________________)





DECISION AND ORDER



The Departments of the Army and Air Force, Army and Air Force Exchange Service, Utah Exchange, Hill Air Force Base, Utah (Employer or AAFES) 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 (Statute), 5 U.S.C. § 7119, between it and Local 1592, American Federation of Government Employees, AFL-CIO (Union).



After investigation of the request for assistance, the Panel determined that the dispute, which concerns smoking, should be resolved on the basis of a single written submission from each party, with the Panel to take whatever action it deemed appropriate to resolve the impasse. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.



BACKGROUND

The Employer's mission is to provide merchandise and services to military personnel and their dependents, and, from its profits, provide funding for Morale, Welfare, and Recreation (MWR) programs. The Union represents approximately 270 nonappropriated-fund employees working at Hill Air Force Base and Defense Depot Ogden who are members of a worldwide consolidated bargaining unit. The parties are covered by a master collective-bargaining agreement which is due to expire in November 1993. They have reached impasse following negotiations over a management proposal to prohibit indoor smoking.



ISSUE AT IMPASSE

The parties disagree over the smoking policy for the Utah Exchange.



1. The Employer's Position

The Employer proposes that: (1) all smoking by employees and patrons inside AAFES facilities at Hill AFB be prohibited; (2) smokers and nonsmokers continue to be authorized the same break times, as provided in the master collective-bargaining agreement; (3) smoking cessation classes be offered at no cost to interested employees, who will be excused from work on official time, workload permitting, to attend classes that are scheduled during their work hours; and (4) outdoor-smoking areas be designated at the seven(1) buildings where the new policy would be implemented.(2)



Subjecting nonsmokers to secondhand smoke is "imprudent, in view of overwhelming scientific data attesting to the harmful effects of passive smoke," and therefore, a ban on indoor smoking is necessary. The proposed outdoor areas will be at least "adequate" during most of the year, except for a few days on which extreme weather conditions occur, thereby accommodating those employees who continue to smoke. Moreover, Employer-sponsored smoking cessation programs should be of benefit to those employees who are trying to break their smoking habits.



The Union's proposal, on the other hand, would not adequately protect the health of nonsmokers. Its proposal also is deficient, as the cost of constructing outside smoking shelters, which would benefit only a few employees, would be exorbitant. Furthermore, no indoor space is available for ventilated smoking rooms because all available space is used either for storing merchandise or providing necessary services. Providing smokers with additional break time would be unfair to nonsmokers and could result in administrative difficulties. Overall, the Union's proposal is (1) unreasonable and (2) fails to balance adequately the competing interests of the two groups of employees.





2. The Union's Position



The Union proposes the following: (1) employees will be allowed to smoke in all indoor areas where patrons are allowed to smoke; (2) where smoking is prohibited indoors, management will designate, provide, or construct enclosed shelters which shall be covered and walled to protect against the elements; the shelter outside the main exchange will be on the north side and will be furnished with an electric or infra-red heater; (3) interested employees will be permitted to enroll in smoking cessation classes at no charge, and will be excused from work on official time, workload permitting, to attend classes that are scheduled during their work time; (4) smoking will not be prohibited in the service station; and (5) employees' desire to smoke will be taken into account in allowing extra time on breaks to travel to and from the smoking area.



Its proposal is preferable because it recognizes that smoking "is a perfectly legal activity and that smokers are entitled to some accommodations if they are to be forced outside." Moreover, since patrons will continue to smoke in AAFES facilities, a ban on indoor smoking by employees is patently unfair. Even if indoor smoking by employees is prohibited in AAFES-controlled facilities, the service station should be excluded from such a ban since there is adequate ventilation due to the frequent opening of the door. In addition, if smokers are required to smoke outside, additional break time should be provided to them for traveling to and from the designated outdoor areas. Overall, the Employer's proposal is burdensome and does not provide a reasonable solution to the impasse.



CONCLUSIONS



Having considered the evidence and arguments in this case, we conclude that a modified version of the Employer's proposal should serve as the basis for resolving the dispute. In our view, a ban on indoor smoking is necessary to enhance the health of all individuals entering AAFES-controlled facilities. In this vein, the portion of the Union's proposal which would permit employees to use the same indoor smoking areas available to patrons appears to be inoperative; that is, in accommodating the Union's concerns, the Employer has proposed a ban on smoking by patrons at all AAFES-controlled facilities. Moreover, since Employer-sponsored cessation programs would undoubtedly benefit some employees, we concur that such a provision should be incorporated into the parties' smoking policy. We agree with the Employer that additional break time for smokers could lead to unnecessary difficulties, especially since the subject of breaks is already addressed in the parties' collective-bargaining agreement; thus, we shall defer to the wording in that agreement which provides standard break periods for all bargaining-unit employees. Finally, with respect to the outdoor smoking areas proposed by the Employer, since we are unable to determine, from the written record, their adequacy or accessibility, we shall adopt a more broadly-worded provision requiring the Employer to designate outdoor smoking areas at the seven locations indicated above which (1) are reasonably accessible to employees, and (2) provide a measure of protection from the elements. Any disputes over the adequacy or accessibility of a designated area may be resolved through the parties' negotiated grievance procedure.



ORDER



Pursuant to the authority vested in it by section 7119 of 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 section 2471.11(a) of its regulations hereby orders the adoption of the following wording:



1. All smoking by employees and patrons inside AAFES facilities at Hill AFB will be prohibited.



2. Smoking cessation classes will be provided at no cost for interested employees, who will be excused from work on official time, workload permitting, to attend classes that are scheduled during their work time.



3. The Employer shall designate outdoor smoking areas at each building covered by the above policy which

























(a) are reasonably accessible to employees and (b) provide a measure of protection from the elements.

By direction of the Panel.













Linda A. Lafferty

Executive Director





April 15, 1992

Washington, D.C.

1. 1 At the Class Six building, which is not owned by the Employer, smoking is permitted indoors in the south lobby. Likewise, in the Hospital Annex, a smoking room in the hospital is available to employees working in this building. The Employer proposes continuation of these smoking areas.

2. 2 Specifically, the Employer proposes the use of picnic tables (72 inches long, 30 inches wide, and covered by an umbrella 90 inches in diamet