EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, WASHINGTON, D.C. AND LOCAL 2667, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
EQUAL EMPLOYMENT OPPORTUNITY
LOCAL 2667, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 94 FSIP 085
DECISION AND ORDER
The Equal Employment Opportunity Commission, Washington, D.C. (Employer), 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 2667, American Federation of Government Employees, AFL-CIO (Union).
After investigation of the request for assistance, the Panel determined that the impasse concerning smoking at the headquarters building should be resolved through the issuance to the parties of an Order to Show Cause why the Panel should not order wording it adopted previously in substantially similar cases.(1) After considering the parties' responses to the Order to Show Cause, the Panel would take whatever action it deemed appropriate to resolve the impasse. Written statements of position and final offers were made pursuant to this procedure and the Panel has considered the entire record.
The Employer is charged with enforcing Title 7 of the Civil Rights Act of 1964; the Age Discrimination and Employment Act of 1967; the Equal Pay Act of 1963; Section 501 of the Rehabilitation Act of 1973; and since July 6, 1992, the Americans with Disabilities Act. The Union represents 600 bargaining-unit employees who are part of a nation-wide, consolidated bargaining unit of 1,700. Employees work in positions such as clerk, investigator, attorney, secretary, and budget, program management, space, and telecommunication analyst. The master collective bargaining agreement will expire on August 1, 1994.
The dispute arose during impact-and-implementation bargaining over the Employer's decision to ban indoor smoking. In 1988, when the Employer moved to the 10-story headquarters building,(2) small, enclosed lounges for smoking were constructed on each of nine floors.(3) Ventilation to the lounges was planned to operate at slightly negative pressure to facilitate exhausting cigarette smoke. Over the last several years, two lounges were closed because of complaints that smoke was spreading to work areas; employees apparently complained about other lounges, but currently seven lounges remain open. The Public Health Service (PHS), Division of Federal Occupational Health, conducted two inspections of the air handling systems serving the lounges in 1991 and 1993.
ISSUE AT IMPASSE
The dispute basically concerns when the ban would be implemented, and the number and, to some extent, the location, of outdoor designated smoking areas.
POSITIONS OF THE PARTIES
1. The Employer's Position
The Employer accepts the wording suggested by the Panel to ban indoor smoking immediately and to permit smokers to participate in a smoking cessation program, but would modify wording dealing with designated outdoor smoking areas; it proposes that it only be required to provide one such area.(4) Generally, it asserts that cigarette smoke is a hazard for smokers and nonsmokers alike; reports by the Environmental Protection Agency and other authorities support this view. Such data have prompted the Panel regularly to order parties to adopt provisions which prohibit indoor smoking. By extension, outdoor smoking also should not be permitted at the building's main entrance. Otherwise, employees entering and exiting the front of the building could be exposed to secondhand smoke and the smoke could be drawn into the building when the doors are opened. To adopt such wording would be tantamount to designating the front entry for smoking because of the lack of other suitable space in the building's relatively constricted downtown location. In some previous cases, the Panel has not required the designation of more than one smoking area.
2. The Union's Position
The Union essentially proposes that: (1) the indoor smoking ban be delayed for 6 months; (2) more than one outdoor area, and an adequately ventilated area in the garage, be designated for smoking, and ashtrays be provided; (3) employees not be penalized if seen smoking beyond designated outdoor areas; and (4) smoking cessation be an ongoing voluntary program that: (a) is paid for by the Employer at least once, and (b) is held during official hours. In addition, it proposes that employees trying to quit may receive assistance through the employee assistance program (EAP). Separately, it urges the Panel to enforce all three PHS recommendations or some combination. These recommendations include a ban on indoor smoking, or a 6th, or 10th floor smoking room.(5)
Going forward with the ban immediately would give employees insufficient time to adjust to such a considerable change in working conditions. With respect to the loading dock area that the Employer would designate for smokers, it is undesirable, and even hazardous, because it: (1) lacks a ramp for handicapped employees; (2) would encourage extended periods of socializing thereby potentially harming performance; and (3) is the site of constant in and out traffic serving several buildings including the "Days Lounge" and a public parking garage which are accessible from the alley. Alternative areas, the front door and the garage, and areas within the building suggested by the PHS, do not suffer from similar drawbacks. Finally, employees who are attempting to give up smoking may suffer from an addiction and should be accorded "the same protection as those individuals who qualify under the Americans with Disabilities Act [ADA]."
No cause having been shown why most of the wording provided by the Panel (see footnote 1 above) should not be adopted, we shall order its adoption, with the single modification the Employer proposes to require only one designated, outdoor smoking area. Initially, in reaching this conclusion, we observe that both parties basically accept the indoor smoking ban; the Union would delay its implementation for 6 months. We are not persuaded that this delay is reasonable since it would also delay needed relief from the unhealthful conditions associated with continued smoking in the lounges. Providing such relief is consistent with the good government standard of enhancing the quality of worklife. Furthermore, smokers likely have already anticipated the ban and begun to prepare themselves for its implementation. Regarding the number of areas to be designated, we are persuaded that one such area should be sufficient. Alternatively, smokers might take a brief stroll along city streets away from the building, and in inclement weather or by choice, use the sheltered outdoor area designated by the Employer.
With respect to smoking in the garage, we are persuaded that second-hand smoke collecting in this area might expose employees to the same hazards that justify the indoor prohibition. Although the Union raises objections to designation of the area adjacent to the loading dock for smoking, we are not persuaded that the garage space provides a reasonable accommodation for smokers. Should handicapped and wheelchair egress prove inadequate, modifications could be made or action taken under existing laws to remedy such problems.
Regarding the remaining provisions, we find that the reference to smoking cessation programs, basically already agreed to, should clarify that employees should be granted official time to attend a complete series of classes. We find that references proposed by the Union to addictive aspects of smoking, a "Constitutional" right to smoke, and accommodations under the ADA are not necessary. In the case of the ADA, if a cause of action should arise under that law, appropriate action may be taken independent of the parties' agreement on smoking. Finally, since EAP programs are available to employees and the Employer has acknowledged that assistance may be available through the program for employees who desire to quit smoking, we also believe that specific reference to the program is not necessary.
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 following modified version of the wording provided by the Panel:
1. All indoor smoking at the Equal Employment Opportunity Commission, Headquarters Building, Washington, D.C., shall be prohibited.
2. The Employer shall designate an outdoor smoking area which (a) is reasonably accessible to employees and (b) provides a measure of protection from the elements.
3. 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.
By direction of the Panel.
Linda A. Lafferty
June 8, 1994
6/ During negotiations, the parties may have tentatively agreed to provisions that are similiar, if not identical, to many of those discussed in this paragraph.
1.The Panel provided the following wording to the parties:
1. All indoor smoking at the Equal Employment Opportunity Commission, Headquarters Building, Washington, D.C.,