DEPARTMENT OF THE NAVY NAVAL COMPUTER TELECOMMUNICATIONS STATION EAST MACHIAS, MAINE AND LOCAL 2635, 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 COMPUTER TELECOMMUNICATIONS
EAST MACHIAS, MAINE
LOCAL 2635, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 93 FSIP 135
DECISION AND ORDER
Local 2635, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and Department of the Navy, Naval Computer Telecommunications Station, East Machias, Maine (Employer or NCTS Cutler).
After investigation of the request for assistance, the Panel determined that the impasse concerning smoking should be resolved on the basis of abbreviated written submissions, 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 considered the entire record.
The Employer maintains giant antennae for communicating with ships and submarines at sea. The Union represents approximately 65 bargaining-unit employees who work as power plant employees, and maintenance, utility, transportation, and antenna workers. The parties' local collective bargaining agreement will expire on December 1, 1995.
The dispute arose during impact-and-implementation bargaining over the Employer's decision to ban indoor smoking at this remote facility on the Atlantic coast of Maine near the 45th parallel. Currently, employees are permitted to smoke indoors in designated areas. The Employer indicates that approximately 30 bargaining-unit employees are smokers. It is uncertain how many of the approximately 100 military personnel stationed at the facility also are smokers.
ISSUE AT IMPASSE
The dispute essentially concerns whether bargaining-unit employees should be permitted to smoke in designated indoor areas during periods of inclement weather.
POSITIONS OF THE PARTIES
1. The Employer's Position
The Employer basically would ban smoking in all buildings and Government-owned and -leased vehicles with three exceptions: (1) family housing units; (2) bachelor enlisted quarters; and (3) the bar area of the Cutlass Club. Further, "during the time civilian employees are assigned to work in military billeting and recreation areas, military members will be asked not to smoke in the immediate area of the civilians." Smoking cessation programs also would be offered. The proposal is necessary to bring the facility into compliance with the Department of the Navy's regulations prohibiting indoor smoking to protect employees' health. A recent inspection by the Command Headquarters Inspector General revealed that employees were smoking in designated areas indoors in violation of the regulations. Furthermore, prohibiting indoor smoking is consistent with the conclusion of the Environmental Protection Agency, and other authorities, that "environmental tobacco smoke is a Group A (known human) carcinogen."(1) Moreover, in principle, its proposal is the same as that adopted by the Panel in a number of previous cases. Finally, regarding outdoor protections, the canopy proposed by the Union in one recent counteroffer(2) would be of little benefit to smokers against "[t]he climatic conditions at NCTS Cutler [which] include severe wind and freezing temperatures." In this regard, the Panel has not required employers to construct or modify structures to shelter smokers outdoors "unless the accommodation ha[s] been offered by the employer."
2. The Union's Position
The Union's proposal is:
During periods of suitable weather, smokers shall be required to take smoke breaks out of doors, and in close proximity to the area where they are assigned to work. In such cases where the weather is inclement--when it is either raining, snowing, sleeting, or during periods when the outside temperature is below 35 [degrees] Fahrenheit--the agency shall provide adequate space indoors for smoking purposes. Said areas shall be provided adequate, positive ventilation, and shall not be utilized as a lunchroom or food storage area.
Since the Employer's plan stops short of being a total ban on indoor smoking, allowing bargaining-unit employees to smoke in currently designated areas during inclement weather would be a reasonable additional accommodation for smokers. In this regard, all but one building at the facility currently have designated indoor smoking areas. The safety officer charged with monitoring such areas takes periodic readings and has found the spaces adequate for a limited number of smokers. Besides affording smokers protections in severe weather, its proposal is consistent with the Employer's plan which would require bargaining-unit employees to work in those parts of the facility where smoking would continue to be permitted.
Having considered the evidence and arguments presented by the parties, we conclude that they should adopt a modified version of the Employer's proposal to resolve the dispute. In this regard, we favor prohibiting indoor smoking, given the overwhelming body of scientific evidence cited by the Employer conclusively establishing the health hazards associated with the passive inhalation of second-hand smoke. Since the Employer would permit smoking to continue in certain housing and recreation areas despite the general ban on indoor smoking, however, bargaining-unit employees are likely to be exposed to second-hand smoke when entering such areas in the course of their work. For this reason, despite our support for the Employer's overall approach, we believe that employees should not be required to enter such areas involuntarily, and shall order wording to that effect. In addition, to address the Union's concerns about the severe weather at this extreme northeastern location, as acknowledged by the Employer, the Employer also should be required to designate outdoor smoking areas which are (1) reasonably accessible to employees, and (2) provide a measure of protection from the elements. Any disputes over the adequacy or accessibility of the designated area may be resolved through the parties' negotiated grievance procedure. Finally, we find that the reference to smoking cessation programs should clarify that employees should be granted official time to attend a complete series of classes; we also find the reference to addictive aspects of smoking unnecessary.
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:
The parties shall adopt the Employer's proposal (smoking instruction 5100.7E) as modified below:
1. The following shall be added at the end of section 5.:
h. No bargaining-unit employee shall be subjected involuntarily to second-hand smoke.
2. The following shall be substituted for section 5.g.:
Smoking cessation classes shall be provided once at no cost for interested employees, who shall be excused from work on official time, workload permitting, to attend classes that are scheduled during their work time.
3. The following shall be added as section 7.:
The Employer shall designate outdoor smoking areas which (a) are reasonably accessible to employees and (b) provide a m