DEPARTMENT OF THE NAVY NAVAL WEAPONS STATION YORKTOWN, VIRGINIA and LOCAL R4-1, NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, SEIU, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF THE NAVY

NAVAL WEAPONS STATION

YORKTOWN, VIRGINIA

and

LOCAL R4-1, NATIONAL ASSOCIATION OF

GOVERNMENT EMPLOYEES, SEIU,

AFL-CIO

Case No. 95 FSIP 9

DECISION AND ORDER

     The Department of the Navy, Naval Weapons Station, Yorktown, Virginia (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, 5 U.S.C. § 7119, between it and Local R4-1, National Association of Government Employees, SEIU, AFL-CIO (Union).

    After investigation of the request for assistance, the Panel determined that the dispute, which concerns a smoking policy, 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 primarily to receive, store, and issue Naval ordnance. The Union represents a bargaining unit of approximately 1,100 employees who hold positions such as clerk, engineer, explosive and material handler, secretary, and technician. These employees are scattered throughout the installation, which covers 10,600 acres and has about 300 buildings. The parties are covered by a collective-bargaining agreement (CBA) that expires in June 1995.

    The dispute arose during negotiations over the Employer's proposed smoking policy for two distinct areas on the installation: the industrial (unrestricted) and restricted areas.(1) The parties agreed to a ban on indoor smoking in the industrial area; they also agreed to a ban on outdoor smoking in the restricted area for safety reasons.

ISSUES AT IMPASSE

    The parties disagree over: (1) the extent to which outdoor accommodations should be made for smokers who work in the industrial area, and (2) whether smoking should be allowed in work buildings in the restricted area.

POSITIONS OF THE PARTIES

1. Smoking Policy in Industrial Areas

    a. The Employer's Position

    The Employer proposes the following:

a. In the industrial areas of WPNSTA Yorktown, smoking will be restricted to spaces outside DON work buildings which are reasonably accessible and provide a measure of protection from the elements, when possible, in areas specifically identified and equipped with receptacles for extinguishing smoking tobacco products. Outdoor areas designated for smoking will not be located in areas commonly used by nonsmokers. They will be located, to the maximum extent possible, in a covered area, within close proximity to access, and specifically in the rear or side of the building if practical and available. They will not be in doorways, walkways in the immediate vicinity of supply air intakes or in building entry ways/egresses. Signs with the words "Designated Smoking Area" shall be prominently posted at specified smoking areas. Confines of smoking areas will be clearly marked. Smoking is prohibited in all mess halls, snack bars and the Chicken Deli. (Emphasis added.)(2)

It also proposes over 50 outdoor areas where employees will be allowed to smoke in the industrial area.(3)

    The Employer must restrict where smoking actually occurs "to fulfill its responsibilities under the Department of Defense (DOD) and the Department of the Navy (DON) smoking policies." By specifically marking where employees can smoke, nonsmokers could avoid the areas and thereby limit their exposure to second-hand smoke. This would also ensure that smoking would not take place in proximity to "fuel storage, dispensing facilities, or near other hazardous materials." Additionally, the station's safety manual prohibits smoking in vehicles while driving through the installation. Therefore, smoking during travel by foot and bicycle would also be excluded under its proposal, consistent with the safety manual. Adoption of its proposal also "will help prevent a littering problem in areas where no receptacles exist." Finally, some limitations on the kinds of protection provided at outdoor smoking areas are necessary. In this regard, ensuring accessible covered shelters throughout the entire installation would be cost prohibitive.

    b. The Union's Position

    The Union's proposal is as follows:

a. In industrial areas of WPNSTA Yorktown, smoking will be restricted to spaces outside DON work buildings which are reasonably accessible and provide a measure of protection from the elements, in areas specifically identified and equipped with receptacles for extinguishing smoking tobacco products. Outdoor areas designated for smoking will not be located in areas commonly used by nonsmokers. They will be located in a covered area, within close proximity to access. They will not be in doorways, walkways in the immediate vicinity of supply air intakes, or in building entry ways/egresses. Signs with the words "DESIGNATED SMOKING AREA" shall be prominently posted at specified smoking areas. Smoking is prohibited in all mess halls, snack bars, and the Chicken-Deli.

Its proposal is more than adequate to protect the rights of nonsmokers. Further, it is consistent with past Panel decisions, and is in compliance with Department of Defense (DOD) regulations. Also, "the fact that smoking will be restricted to outdoor, specified areas clearly identified by signs" will protect employees from second-hand smoke.

    The Employer's arguments, on the other hand, are a "subterfuge" to distract the Panel. They are "redundant and demeaning," and "an alarmist attempt to distract." For instance, the law, as well as the Employer's regulations, prohibit smoking anywhere near a fuel storage or dispensing facility. The overall intent of its proposal is to "rope off, paint an area, or otherwise physically mark the parameters of the only areas where smoking will be allowed outdoors;" this would subject smokers to "ridicule and contempt." Also, littering is not a problem since the parties have already agreed that "smokers are required to keep designated smoking areas clean." Finally, it appears that the Employer wants to "arbitrarily mark off a minimum number of smoking areas." There is no precedent for such strict control.

CONCLUSIONS

    Having examined the evidence and arguments on this issue, we conclude that a modified version of the Union's proposal should be adopted to resolve the dispute. Preliminarily, we note that the parties agree on most of the wording to be included in the smoking policy for the industrial areas. Their primary disagreement concerns the extent to which smoking in outdoor areas should be circumscribed, and the degree of protection from the elements that should be provided. In our view, the Employer's proposal to clearly mark the confines of smoking areas is unnecessary, given that signs are to be prominently posted identifying the outdoor areas, and industrial areas are considered nonrestricted and free from explosives. Its proposal also includes expendable wording designed to limit in advance the degree of protection that smokers are to be provided. For the most part, we believe that the Union's proposal adequately balances the needs of the parties, and is consistent with what we have done in the past in resolving such disputes. Because it could force the Employer to provide covered shelters in all circumstances, even where it may not be feasible to do so, it shall be modified to exclude such requirement. Any disputes over the adequacy or accessibility of the designated areas provided by the Employer may be resolved through the parties' negotiated grievance procedure.

2. Smoking Policy in Restricted Areas

    a. The Employer's Position

    The Employer proposes the following:

b. In restricted (explosives) areas of WPNSTA Yorktown, smoking is restricted in all outside areas. Smoking will be permitted in nonwork buildings in restricted area in a designated break room/lunch room separated for smokers and nonsmokers by ventilation that will exhaust to the outside so as not to expose the nonsmoker to ETS or to present a serious or substantial public health impact. Smoking is prohibited in warehouses, private offices (except designated smoking/break rooms), storerooms, pier, loading docks/ramps, inside cargo trailers/vans/railcars and barges, salvage buildings/yards, or any other area deemed to be hazardous, unsafe, or unhealthy. (Emphasis added.)

It also proposes several nonwork buildings in the restricted area where employees may smoke.

    Its proposal is necessary for safety reasons and because DOD regulations ban smoking in work buildings. For these reasons, permitting smoking in some nonwork buildings in the restricted area that have separate break areas is the only logical alternative. In this regard, its limited budget will not permit spending money on constructing additional buildings strictly for smoking. Its money is better spent providing employees with smoking cessation classes.

    b. The Union's Position

    The Union's proposal is as follows:

b. In restricted areas of WPNSTA Yorktown, smoking is presently restricted in all outside areas. Smoking will be permitted in buildings in the restricted area in a designated break room/lunch room separated for smokers and nonsmokers by ventilation that will exhaust to the outside so as not to expose the nonsmoker to ETS or to present a serious or substantial public health impact. Smoking is prohibited in warehouses, private offices (except approved/designated smoking/break rooms), store-rooms, pier, loading docks/ramps, inside cargo trailers/vans/railcars and barges, salvage buildings/yards, or any other area deemed to be hazardous, unsafe, or unhealthy.

Since employees are not allowed to smoke outside, an exception should be made to permit them to smoke in work buildings. Such exceptions are not rare. For example, the Secretary of the Navy made such an exception when it granted smokers the right to smoke on ships when out at sea. Furthermore, the parties' current negotiated agreement allows employees in high explosive areas to receive additional time for travel to an approved break area. Thus, if employees are not allowed to smoke in work buildings, the Employer would be required to extend breaks and lunch for employees who smoke. It would also raise costs for transporting the affected employee to an approved break area.

CONCLUSIONS

    Having thoroughly evaluated the arguments and evidence presented on this issue, we conclude that the Employer's proposal adequately resolves the dispute. In this regard, we find the Union's proposal does not take into consideration the overwhelming scientific evidence regarding the hazards connected with exposure to environmental tobacco smoke. On the other hand, the Employer's willingness to permit smoking in nonwork buildings, in addition to the fact that the parties' master agreement provides "that employees in high explosive areas will receive additional time for travel to approved break areas," should to some degree alleviate smokers' concerns. Furthermore, because the parties' master agreement is due to expire soon, they may address the issue during subsequent negotiations if travel to the nonwork sites proves to be problematic. Accordingly, we shall order the adoption of the Employer's 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 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:

1. Smoking Policy in Industrial Areas

    The parties shall adopt the following modified version of the Union's proposal:

a. In industrial areas of WPNSTA Yorktown, smoking will be restricted to spaces outside DON work buildings which are reasonably accessible and provide a measure of protection from the elements, in areas specifically identified and equipped with receptacles for extinguishing smoking tobacco products. Outdoor areas designated for smoking will not be located in areas commonly used by nonsmokers. They will be located within close proximity to access. They will not be in doorways, walkways in the immediate vicinity of supply air intakes, or in building entry ways/egresses. Signs with the words "DESIGNATED SMOKING AREA" shall be prominently posted at specified smoking areas. Smoking is prohibited in all mess halls, snack bars, and the Chicken-Deli.

2. Smoking Policy in Restricted Areas

    The parties shall adopt the Employer's propo