DEPARTMENT OF THE ARMY ARMY CORPS OF ENGINEERS HUNTINGTON DISTRICT HUNTINGTON, WEST VIRGINIA AND LOCAL 3729, 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 CORPS OF ENGINEERS
HUNTINGTON, WEST VIRGINIA
LOCAL 3729, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 95 FSIP 88
DECISION AND ORDER
Local 3729, American Federation of Government Employees, AFL-CIO (Union) and the Department of the Army, Army Corps of Engineers, Huntington District, Huntington, West Virginia (Employer) filed a joint 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.
After investigation of the request for assistance, the Panel determined that the impasse concerning smoking policy 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 oversees locks and dams on the Ohio River and its tributaries, and is charged with flood control projects for a 45,000 square-mile area. The Union represents approximately 175 employees who hold positions such as budget analyst, civil engineer technician, clerk, and secretary. The parties’ collective-bargaining agreement (CBA) is due to expire on September 7, 1995.
The dispute arose during negotiations over the Employer’s decision to ban indoor smoking in the following five leased space facilities/workplaces: Federal Building (District Office), Christie Building, Nelson Building, Shank Building, and Allied Building. Subsequently, an agreement was reached over the Christie Building, wherein the Employer will continue to permit employees to smoke in a General Services Administration (GSA)-controlled designated smoking room shared with other Federal agencies in the building. In the meantime, the parties are abiding by a previous Panel decision regarding the Federal Building, which permitted smoking in a third-floor lounge, outdoor picnic area, and the basement area in the Christie Building.(2) The Federal and Christie buildings are adjacent to each other and are connected by a tunnel.
ISSUE AT IMPASSE
The parties essentially disagree over whether smoking should continue to be permitted in the Federal Building’s third-floor lounge.
POSITIONS OF THE PARTIES
1. The Union's Position
In essence, the Union accepts the Panel’s wording as it pertains to the Nelson, Shank, and Allied Buildings. It proposes, however, that the Employer retain the smoking room in the Federal Building until the "Ban on Smoking in Federal Buildings Act" (Act) is passed by Congress.(3) This smoking room was obtained through the previous Panel decision. Further, an exhaust fan was installed in April 1994, in order to comply with subsequent Department of Defense (DOD) guidance; there are three air filtering units as well that meet current guidelines. Additionally, recent monitoring done by the Safety Office of carbon monoxide in and around the Federal Building indicates that levels are well below the permissible exposure limits established by the Occupational Safety and Health Administration and the American Conference of Governmental Industrial Hygienists. Although it agrees with the Employer’s proposal to retain the smoking room in the Christie Building, the tunnel connecting the two buildings has been closed for security reasons due to the Oklahoma City bombing, subjecting smokers to inclement weather and creating a hardship for employees with physical disabilities. Moreover, employees frequent the smoking room only when they are attending training classes in that building. Finally, if the Act is passed by Congress, it would make indoor smoking permissible if ventilation is in accordance with Federal indoor air quality standards for environmental tobacco smoke; these are currently being met.
2. The Employer's Position
The Employer, while essentially concurring with the Panel’s wording, would modify it only so the Christie Building’s GSA- designated smoking room "would serve as our area of protection" for employees who work in the Federal Building. As demonstrated by its photographs,(4) there is no open area on which to build a smoking shelter. The Christie Building, however, "is easily accessible, furnished, ventilated, heated, air-conditioned, and is currently being used by our employees." Additionally, employees will continue to be allowed to smoke at the outside picnic area. Although it is true that modifications have been made to the third floor lounge’s exhaust system, "it does not virtually eliminate smoke from the air." Finally, its position: (1) is consistent with past Panel decisions; (2) complies with Department of Defense and Department of the Army guidelines; and (3) takes into consideration its commitment to protecting its employees from the harmful effects of second-hand smoke.
Having considered the evidence and arguments in this case, we conclude that no cause has been shown why most of the wording provided by the Panel should not be adopted. Therefore, we shall order its adoption, with the single modification the Employer proposes to require that the designated smoking room in the Christie Building serve as the only measure of protection from the elements for employees who work in the Federal Building. In this regard, based on the photographs provided, it appears that there would be no feasible way to provide outdoor shelter around the Federal Building. The Employer’s willingness, however, to continue to have employees travel to the Christie Building should, to some extent, alleviate smokers’ concerns. The Union's proposal, on the other hand, fails to give sufficient consideration to the seriousness of the health issue involved. Although it provides some evidence as to the quality of the air in the Federal Building, there is no evidence to support the view that the current available ventilation in the indoor smoking area has eliminated the scientifically-proven adverse affects of second-hand smoke on the health of employees.(5) Moreover, while the tunnel’s closing may cause an inconvenience, this is minor in contrast to the extensively documented health hazards associated with exposure to second-hand smoke.
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 wording:
1. All indoor smoking at the Federal Building, Nelson Building, Shank Building, and Allied Building, shall be prohibited.
2. In regard to the Nelson Building, Shank Building, and Allied Building, the Employer shall designate outdoor smoking areas which (a) are reasonably accessible to employees and (b) provide a measure of protection from the elements. As to the Federal Building, the Christie Building’s smoke room shall serve as the designated area that provides a measure of protection from the elements.
By direction of the Panel.
Linda A. Lafferty
June 6, 1995
1.The Panel provided the following wording to the parties:
1. All indoor smoking in the Federal Building, Nelson Building, Shank Building, and Allied Building shall be prohibited.
2. The Employer shall designate outdoor smoking areas which (a) are reasonably accessible to employees and (b) provide a measure of protection from the elements.
2.Department of the Army, U.S. Army Engineer District Huntington, Huntington, West Virginia and Local 3729, Amer