DEPARTMENT OF THE ARMY ARMY CORPS OF ENGINEERS MEMPHIS DISTRICT MEMPHIS, TENNESSEE and LOCAL 259, NATIONAL FEDERATION OF FEDERAL EMPLOYEES
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF THE ARMY
ARMY CORPS OF ENGINEERS
Case No. 98 FSIP 159
LOCAL 259, NATIONAL FEDERATION OF
DECISION AND ORDER
Local 259, National Federation of Federal Employees (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, 5 U.S.C. § 7119, between it and the Department of the Army, Army Corps of Engineers, Memphis District, Memphis, Tennessee (Employer).
Following an investigation of the impasse, arising from local bargaining over an Agency-wide "no smoking" policy, the Panel determined that the dispute should be resolved through the issuance of an Order to Show Cause why wording previously adopted by the Panel in similar circumstances should not also be mandated to settle the parties’ impasse.(1) After considering the entire record, including the parties’ statements of position, the Panel would issue a binding decision to resolve the dispute. The parties submitted final offers and written statements of position pursuant to this procedure. After considering the submissions, however, the Panel determined that the parties did not provide sufficient information to demonstrate whether the current designated indoor smoking areas at the Federal Building and the Administration Building at the Ensley Engineer Yard (Yard): (1) cause any adverse effects; and (2) meet the exception criteria of Executive Order (E.O.) 13058, "Protecting Federal Employees and the Public From Exposure to Tobacco Smoke in the Federal Workplace," 62 Fed. Reg. 43, 449 (1997).(2) To address these concerns, it directed the parties to submit additional statements and necessary documentary evidence, including relevant information from the General Services Administration (GSA) concerning the adequacy of the ventilation in the Federal Building’s smoking room. The parties provided the requested information and the Panel has now considered the entire record.(3)
The Employer’s mission is to: (1) support, operate, and maintain activities related to rivers, harbors, and waterways through research and development; (2) administer the laws for the protection and preservation of navigable waters and related resources, such as wetlands; and (3) assist in recovery from natural disasters. Specifically, the Memphis District is in charge of stabilizing the lower Mississippi River within the flood plain, from Cairo, Illinois, to Rosedale, Mississippi, through dredging, channelization, and revetment. The Union represents a bargaining unit of at least 400 employees who work as architects, environmental personnel, civil engineering technicians, and in various trade occupations. The parties' collective-bargaining agreement (CBA) was due to expire in 1993, but its terms still govern through an annual renewal provision. A 1990 memorandum of understanding (1990 MOU) between the parties designates smoking areas within the Memphis District.
ISSUE AT IMPASSE
The primary issue in dispute is whether indoor smoking should be prohibited in all of the Employer’s facilities. Of specific concern is whether to continue: (1) designated smoking areas on the 6th floor of the Federal Building, at the Administration Building, and in the Machine and Tractor Shops (Shops) at the Yard; and (2) outdoor smoking onboard Employer-owned, -operated, and -maintained vessels.
POSITIONS OF THE PARTIES
1. The Union’s Position
While indoor smoking would be prohibited in all other facilities, the Union proposes maintaining the status quo of allowing employees to smoke: (1) in the two existing smoking rooms; (2) in the main area of the Shops; and (3) on boat decks. In essence, the circumstances in this case warrant deviating from the solution previously imposed by the Panel in impasses over indoor smoking. In this regard, "maintaining current smoking room(s) is the most suitable, reasonable, and cost-effective policy" because they comply with E.O. 13058 and require no additional installation costs. Although the GSA Building Manager made a "bare assertion" that the current ventilation system does not conform to the E.O., he orally confirmed that exhaust fans on the roof of the Federal Building vent smoke from the 6th floor smoking room; this is corroborated by employee statements that smoke does not escape from the room. Furthermore, GSA has not acted to close the room for non-conformance. In addition, the ventilation of the Administration Building’s smoking room is satisfactory because, according to the Supervisory Civil Engineer in charge of its installation, there are exterior and interior doors and an exhaust fan of sufficient size to expel the smoke; employees do not complain of escaping smoke.(4)
Turning to the remaining areas in dispute, the Shops are barn-like structures, open at each end, and equipped with huge exhaust fans to dissipate welding and chemical fumes. Since these toxic vapors are more dangerous to employees than second-hand smoke, maintaining indoor smoking in this open environment would not contribute to job-related health risks and would result in only limited exposure to second-hand smoke. To date, the Employer has not provided accessible outdoor accommodations to employees at either the Federal Building or the Yard. As to outdoor smoking on boats, "employees routinely smoke while working." Given the high percentage of smokers in this segment of the workforce and the confined deck area, designating outdoor smoking areas would affect employee productivity and morale. In addition, existing "no smoking" areas on deck, located around hazardous materials, provide sufficient protection to employees; further delineation of areas either to prohibit or permit smoking is unnecessary.
2. The Employer’s Position
The Employer is willing to accept the wording of the Panel’s Order to Show Cause because its effect would be identical to that of the policy letter the Employer originally proposed to implement, i.e., a prohibition on indoor smoking.(5) Along with E.O. 13058, the directive mandates a smoke-free workplace, giving the Employer little discretion in the matter. The first section of the Panel’s proposed wording protects the "health and well-being" of all employees, smokers and nonsmokers alike, by providing a smoke-free workplace.(6) The GSA Building Manager confirms, in a signed letter, that the 6th floor smoking room "do[es] not meet the criteria as set forth in [E.O.] 13058," a determination reached "subsequent to an inspection of the ventilation systems." The inspection found the exhaust fan inadequate to expel the collected smoke because it is connected to the building’s central temperature-control system.(7) Complaints from employees about the smoke and odor emanating from the room, and the allergic reactions, respiratory distress, and other adverse health effects they suffer as a result, are further indications of non-compliance with E.O. 13058. Regarding the second part of the proposed solution, designed to provide reasonable accommodations for employees who smoke, the Federal Building’s exterior 4½-foot overhang should provide sufficient protection from the elements. At the Yard, outdoor areas exist for locating smoking shelters.(8)
Having carefully reviewed the entire record in this case, we shall impose the wording in our Order to Show Cause to resolve the parties’ dispute over smoking policy, except for the Administration Building and on vessels. In the latter two areas, as explained more fully below, we shall order that the status quo be maintained. Among other things, our decision will require closing the Federal Building’s 6th floor smoking room and designating accessible outdoor smoking areas to accommodate employees who smoke at that facility.
With respect to the Federal Building, in our view the Employer has demonstrated that the ventilation system is inadequate to protect the health of employees. This conclusion is based on the GSA Building Manager’s two letters, as well as the statements of employees who work on the 6th floor. Although the parties refer to seemingly contradictory statements by the same GSA official, we find the signed documents provided by the Employer more persuasive than the oral statement relayed by