DEPARTMENT OF THE ARMY ARMY RESERVE PERSONNEL CENTER ST. LOUIS, MISSOURI AND LOCAL 900, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America



BEFORE THE FEDERAL SERVICE IMPASSES PANEL







In the Matter of

DEPARTMENT OF THE ARMY

ARMY RESERVE PERSONNEL CENTER

ST. LOUIS, MISSOURI

AND



LOCAL 900, AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES, AFL-CIO

Case No. 93 FSIP 124


DECISION AND ORDER



Local 900, 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 the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of the Army, Army Reserve Personnel Center, St. Louis, Missouri (Employer).



After investigation of the request for assistance, the Panel determined that the dispute, which concerns a change in smoking policy, should be resolved through an informal conference with a Panel representative. The parties were advised that if no settlement were reached, the Panel's representative would notify the Panel of the status of the dispute, including the final offers of the parties, and would make recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.



The parties met with Panel Member Charles A. Kothe on July 20, 1993, in St. Louis, Missouri. During the informal conference, the parties were unable to resolve the issue in dispute.(1) He has reported to the Panel based on the record developed by the parties, and it has now considered the entire record.



BACKGROUND



The Employer's primary mission is to plan and implement the mobilization of the U.S. Army Reserves should such action become necessary. The bargaining unit represented by the Union consists of approximately 1,200 nonprofessional employees who hold positions such as file clerk and secretary. The parties' collective bargaining agreement has expired but continues to be honored until a successor agreement is implemented. The dispute arose during negotiations over smoking policy of Building 100 and 101, and the newly-constructed Prevedal Building; the new building is near completion and the older building is being renovated. The parties have already reached agreement in permitting smoking in certain areas.(2) However, the Union wants more indoor smoking areas as well an enclosed ventilated outside area which will provide protection from the elements. The Employer wants smoking to be prohibited indoors, except for areas already agreed to, but contends it will provide adequate outside protection from the elements.



ISSUE AT IMPASSE



The parties primarily disagree over whether smoking should be permitted in certain indoor areas, and whether the Employer should construct an enclosed, ventilated area in the courtyard for smokers.



POSITIONS OF THE PARTIES



1. The Employer's Position



In essence, the Employer proposes that smoking be prohibited, except in areas already agreed to. In this regard, the dangers of second-hand smoke is well documented, and its prohibition will serve to protect nonsmokers from its risks. However, there will be an overhang in the courtyard to protect smokers from the elements. Additionally, a tent will be erected, with plastic sides capable of being rolled up or down, depending on the weather. Therefore, smokers will be adequately protected while nonsmokers will not suffer the detriments of second-hand smoke.

2. The Union's Position



The Union proposes that smoking be permitted in the following areas: (1) restroom on the second, fourth and fifth floors in Building 100; (2) the Union office; (3) Room 4150 or that the Agency build a smoking room on the fourth floor of building 100; and (4) that the Agency construct an enclosed area in the courtyard for smokers with proper ventilation. It is appropriate to permit smoking in these areas because it is in accordance with Federal regulations.(3) In this regard, it permits the designation of those areas for smoking. Also, permitting smoking in the Union office would help alleviate the high level of stress and tension employees may have when they come into the office to register a complaint. Further, an enclosed area in the courtyard would protect employees from weather hazards.

CONCLUSIONS



Having considered the evidence and arguments presented, we conclude that a compromise solution should be adopted. Due to the increasing evidence of the detrimental effects of second-hand smoke, we believe that the Union is not justified in its attempts to seek further indoor smoking areas. In our view, its reliance on Federal regulations to justify indoor smoking demonstrates that it fails to grasp the significance of the health hazards involved. Furthermore, the regulations state that "nothing in these regulations precludes an agency from establishing more stringent guidelines." However, the Employer's proposal does not go as far as it should in establishing a smoke-free workplace. Therefore, although the parties may have reached an earlier agreement concerning where smoking will be permitted, we find it necessary that smoking be prohibited in all indoor areas of the buildings in question. However, since construction and renovation are not as of yet fully completed, we shall order that smoking be allowed to continue in the areas previously agreed to by the parties, including the vending machine area,(4) until such time as only onlyconstruction at the facility is completed and the buildings are declared smoke free. There will be no smoke breaks, rather smoking will be permitted in the designated outdoor areas during the regular breaks only.



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 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 the following:



Smoking will be permitted in the following areas until construction at the facility is complete:



Cafeteria in the east end of Building 101; east entrance of Building 100; loading dock in Building 100 (exclusive of areas where smoking is prohibited); main entrance to the Prevedel Building; courtyard; and the vending machine area.



When construction is completed and the buildings are declared smoke free, only outdoor areas provided for smokers will be used. There will be no smoke breaks; rather smoking will be permitted in the designated outdoor areas during the regular breaks only.



By direction of the Panel.





Linda A. Lafferty