DEPARTMENT OF THE ARMY HEADQUARTERS 10TH MOUNTAIN DIVISION AND FORT DRUM FORT DRUM, NEW YORK and LOCAL R2-61, 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 ARMY

HEADQUARTERS 10TH MOUNTAIN DIVISION

AND FORT DRUM

FORT DRUM, NEW YORK

and

LOCAL R2-61, NATIONAL ASSOCIATION OF

GOVERNMENT EMPLOYEES, SEIU, AFL-CIO

DEPARTMENT OF THE ARMY

HEADQUARTERS 10TH MOUNTAIN DIVISION

AND FORT DRUM

FORT DRUM, NEW YORK

and

LOCAL 400, AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES, AFL-CIO

 

DEPARTMENT OF THE ARMY

HEADQUARTERS 10TH MOUNTAIN DIVISION

AND FORT DRUM

FORT DRUM, NEW YORK

and

LOCAL F-105, INTERNATIONAL 

ASSOCIATION

OF FIREFIGHTERS, AFL-CIO

 

 

 

 

Case No. 95 FSIP 95

 

 

 

 

 

 

Case No. 95 FSIP 117

 

 

 

 

 

Case Nos. 95 FSIP 114

95 FSIP 132

 

 

 

 

 

DECISION AND ORDER

       The Department of the Army, Headquarters 10th Mountain Division and Fort Drum, Fort Drum, New York (Employer); Local R2-61, National Association of Government Employees, SEIU, AFL-CIO (NAGE); Local 400, American Federation of Government Employees, AFL-CIO; and Local F-105, International Association of Firefighters, AFL-CIO (IAFF), each filed separate requests for assistance with the Federal Service Impasses Panel (Panel) to consider negotiation impasses under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119. After investigation of the requests for assistance, the Panel consolidated the cases and determined that the dispute, which concerns the smoking policy at Fort Drum, should be resolved on the basis of the parties’ written responses to an order to show cause.(1) Following consideration of those responses, the Panel would take whatever action it deemed appropriate to resolve the impasses. Pursuant to this procedural directive, only NAGE, AFGE, and the Employer submitted responses. The record is now closed, and the Panel has considered all relevant information contained therein.

BACKGROUND

        Fort Drum is home to over 10,000 troops who serve in combat and peacekeeping missions. The installation is located near Watertown, New York, which is approximately 70 miles north of Syracuse and 30 miles from the Canadian border. NAGE represents two separate units at the installation. One consists of approximately 400 blue collar employees who work primarily in skilled trades positions, with the other unit consisting of approximately 200 nonappropriated fund employees who work in the child care center, the recreation centers, and the guest-housing facilities; each unit is covered by a separate collective-bargaining agreement. The AFGE unit consists of approximately 400 administrative and clerical employees who are covered by a collective-bargaining agreement which expired on June 22, 1995; the parties are currently bargaining over ground rules for a successor agreement. The IAFF unit consists of approximately 45 employees, most of whom are firefighters; the IAFF contract expired in March 1995, but is currently being renegotiated.

    In each of these cases, the parties have reached impasse following mid-term negotiations over the Employer’s proposed revised smoking policy. The issue was originally discussed in the joint partnership council and a recommendation to deviate from DOD policy was sent forward to the commander. After that recommendation was rejected, formal negotiations began between the Employer and each union.

ISSUE

        Whether provisions similar to those adopted by the Panel in Malmstrom AFB should be ordered to resolve the instant dispute over smoking policy.

POSITIONS OF THE PARTIES

1. The Employer’s Position

        The Employer agrees in principle with the Panel’s proposed wording, with the following modifications:

1. Smoking is prohibited in any Government vehicle, building, or entryway, with the exception of in Military Family Housing and the designated areas in the following places: Fort Drum clubs (Officer’s Club, Mountaineer Club (NCO Club), Spinners Club, Pennants Club); the following AAFES snack bars: Bonnie’s Snack Bar and Emma’s Snack Bar; the Bowling Center; and soldiers’ barracks.

2. For Case No. 95 FSIP 95: Smoke breaks will be provided in accordance with the collective-bargaining agreements, except that employees may make arrangements with their supervisors to divide the breaks into two or three break periods.

    For Case Nos. 95 FSIP 114 and 132: Breaks, for smoking and other purposes, will be provided in accordance with the collective-bargaining agreement.

    For Case No. 95 FSIP 117: Reasonable smoke breaks will be allowed, not to exceed 15 minutes per four hour work period. This may be broken into two or three break periods subject to work requirements.

3. Current employees may attend one smoking cessation class at no cost to them and on duty time.

4. The terms of this order will be effective 30 days after the date of the order to allow for dissemination of the new requirements to the workforce.

5. In the 120-day period following the effective date of the new policy, those who violate the policy will be given a verbal warning prior to initiation of progressive disciplinary action.

Adopting a resolution similar to the one in Malmstrom AFB is appropriate, as the climates at the two installations are "essentially the same." Moreover, Fort Drum has already implemented a total ban on smoking in some buildings, which is comparable to the situation at Malmstrom.

    The modifications that it proposes in paragraph 1 reflect the specific names of facilities at Fort Drum. That paragraph also clarifies, for purposes of Case Nos. 95 FSIP 114 and 132, that the firefighters’ sleeping area is not considered living quarters, but is, instead, a work area. The proposed changes to paragraph 2 are consistent with the provisions of the parties’ respective collective-bargaining agreements, as well as agreements reached on some collateral items during negotiations. The Employer’s paragraph 3 reflects its commitment to cessation programs, but only for current employees. Paragraph 4 of the proposal reflects its view that a 30-day phase-in period is sufficient given that the revised DOD policy has already received considerable publicity. Finally, the proposed changes to paragraph 5 should clarify that once the 120-day grace period is over, progressive discipline will be used whenever violations of the smoking policy are detected.

2. NAGE’s Position

    NAGE proposes the retention of those areas currently designated as indoor smoking areas with the installation of ventilation systems, where necessary, to ensure circulation of fresh air. In the alternative, it proposes that any one of the following options be adopted:

1. Provide outdoor sheltered smoking areas that are protected from the elements, that are lighted, heated, and ventilated, and that are sufficient in size to accommodate, and to be furnished with, a table and six chairs. The shelters are to be located in close proximity to where bargaining-unit employees are assigned.

2. a. The Employer shall designate one entrance to each facility as being the common point of entrance into the facility. Employees who choose to smoke may not smoke within 50 feet of the designated entrance. Employees may smoke at all other entrances to the facility, including loading docks, porches, and pavilions.

    b. The Employer shall provide an indoor smoking area in each facility that bargaining-unit employees who smoke are assigned for use between 1 November and 30 April.

3. a. The Employer shall designate one entrance to each facility as being the common point of entrance into the facility. Employees who choose to smoke may not smoke within 50 feet of the designated entrance. Employees may smoke at all other entrances to the facility, including loading docks, porches, and pavilions.

    b. The Employer shall provide an indoor smoking area in each facility that bargaining-unit employees who smoke are assigned for use when the temperature is 32°F or below and during periods of inclement weather.

4. a. The Employer shall designate one entrance to each facility as being the common point of entrance into the facility. Employees who choose to smoke may not smoke within 50 feet of the designated entrance. Employees may smoke at all other entrances to the facility, including loading docks, porches, and pavilions.

    b. The Employer shall provide at one entrance to each facility a smoking area that is covered and protected from the elements.

5. a. The Employer shall designate one entrance to each facility as being the common point of entrance into the facility. Employees who choose to smoke may not smoke within 50 feet of the designated entrance. Employees may smoke at all other entrances to the facility, including loading docks, porches, and pavilions.

    b. The Employer shall provide sheltered smoking areas in close proximity to each facility in which unit employees are assigned. The shelters shall provide protection from the elements.

The facts of this case are significantly different from those in Malmstrom AFB and, therefore, the provisions set forth in the show cause order should not serve as a basis for resolving this dispute. First, since the Panel’s Decision and Order in Malmstrom AFB was issued, Department of Defense Instruction No. 1010.15 (March 7, 1994) was promulgated. That instruction establishes a department-wide smoking policy which requires "the designation of outdoor smoking areas, when possible, which are reasonably accessible to employees and provide a measure of protection from the elements." Second, the installation’s Labor-Management Partnership Council thoroughly discussed the smoking issue and reached consensus that the existing policy ought to be maintained; overturning this consensus would undermine the integrity of the partnership council and could have a negative impact on its ability to function successfully. Third, the winter weather conditions (including temperature, wind chill, and snowfall) at Fort Drum are "a significant and material fact that distinguishes this case from Malmstrom AFB." Finally, the Employer in this case can afford to fund the construction of smoking shelters as evidenced by its expenditure of "tremendous amounts of tax dollars" on less worthy projects.(2) For these reasons, the Panel ought to reject the approach taken in Malmstrom AFB and adopt one of the Union’s proposed solutions.

3. AFGE’s Position(3)

    AFGE apparently would have the Panel adopt the same approach as it did in Department of the Air Force, Griffiss Air Force Base, Griffiss Air Force Base, New York and Local 2612, American Federation of Government Employees, AFL-CIO, Case No. 89 FSIP 214 (January 24, 1990), Panel Release No. 290. In that case, the Panel ordered the adoption of the following modified version of the employer’s proposal:

Effective on the first day of the month following the signing of this agreement, or within 2 weeks after the signing of this agreement, whichever is longer, the Employer will implement its smoke-free policy with certain outdoor-condition exceptions. Therefore, when the weather is not suitable for outdoor smoking, employees will be allowed to use those designated smoking areas (DSAs) in existence on May 12, 1989, the date these negotiations began.

The following conditions shall be considered unsuitable for purposes of permitting smoking in DSAs:

a. temperatures lower than 35 degrees;

b. precipitation and no outside area with an overhead shelter;

c. Gusting winds such that it would make conditions incompatible and smoking impractical outside.

Recreational areas such as clubs and the bowling center will continue to maintain DSAs.

Management shall consider exceptions to this policy in cases of hardship.

Smoking cessation classes will continue to be made available under the provisions of the November 1987 negotiated agreement.

If management decides to terminate this agreement, the base shall return to the smoking policy in effect at the signing of this agreement.

Any subsequent initiative to alter the smoking policy is subject but not limited to sections 7114 and 7117 of the Federal Service Labor-Management Relations Statute.

AFGE maintains that the approach set forth in Griffiss AFB, is more reasonable and humane for unit employees, given the extreme weather conditions that exist in the area. In addition, Fort Drum is dissimilar from Malmstrom Air Force Base in that it is an open post which is not secure; requiring employees to smoke outdoors at night or on weekends could expose them to injury or foul play. Finally, while a uniform smoking policy may have been appropriate at Malmstrom, it is not appropriate for this installation because of the diverse nature of the workforce.

CONCLUSIONS

    Having carefully reviewed the record in these cases, we conclude that the dispute over smoking should be resolved on the basis of a modified version of the provision we adopted in Malmstrom AFB. This approach strikes an appropriate balance between the competing interests of smokers and nonsmokers by coupling the elimination of indoor smoking with some accommodation for those who continue to smoke. Moreover, because our solution will require the parties jointly to identify outdoor areas which are appropriate for smoking, it should, in the long run, serve their respective interests better than any attempt by the Panel to identify outdoor areas without benefit of an on-site inspection. Finally, this provision recognizes that there are facilities and practices at Fort Drum which are unique to that installation; we shall, therefore, tailor our Order accordingly.

ORDER

    Pursuant to the authority vested in it by section 7119 of the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their disputes during the course of proceedings instituted under 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 parties to adopt the following:

1. Smoking is prohibited in any Government vehicle, building, or entryway, with the exception of in Military Family Housing and the designated areas in the following places: Fort Drum clubs (Officer’s Club, Mountaineer Club (NCO Club), Spinners Club, Pennants Club); the following AAFES snack bars: Bonnie’s Snack Bar and Emma’s Snack Bar; the Bowling Center; and soldiers’ barracks.

2. The parties shall jointly identify existing outdoor areas where employees may smoke. The areas shall meet the following criteria: they shall provide overhead coverings; they shall be reasonably accessible to employees’ worksites; and they shall meet safety, hea