DEPARTMENT OF DEFENSE NATIONAL GUARD BUREAU HAWAII NATIONAL GUARD HONOLULU, HAWAII and LOCAL 1213, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
HAWAII NATIONAL GUARD
HONOLULU, HAWAII

and

LOCAL 1213, AMERICAN FEDERATION OF
     GOVERNMENT EMPLOYEES, AFL-CIO

Case No. 02 FSIP 123

DECISION AND ORDER

    The Department of Defense, National Guard Bureau, Hawaii National Guard, Honolulu, Hawaii (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 1213, American Federation of Government Employees, AFL-CIO (Union).

   Following an investigation of the dispute, arising from negotiations over a smoking policy, the Panel determined that the matter should be resolved through the issuance of an Order to Show Cause. In this regard, the Panel directed the parties to show cause why their dispute should not be resolved by adopting the following wording:

1. All indoor smoking 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.

After considering the entire record, including any proposals which may differ from the wording in the Order to Show Cause, and the parties’ statements of position, the Panel would issue a binding decision to resolve the impasse. The parties submitted final offers and written statements of position pursuant to this procedure. The Panel has now considered the entire record.

BACKGROUND

    The Employer’s mission is two-fold; its Federal mission is to provide support during national emergencies and maintain readiness of the Army and Air National Guard; its state mission is to provide support for the directives of the Governor of the State of Hawaii, which may include responding to disasters, both man-made and natural. The Employer has facilities state-wide, including those at Fort Ruger, Hickman Air Force Base, Wheeler Army Air Field, and Army units on each of the islands. The Union represents two bargaining units, one consisting of Army National Guard employees and the other Air National Guard employees, which fluctuate in size due to mobilizations. Currently, there are approximately 500 employees in the two bargaining units, the majority of whom are civilian technicians who must, as a prerequisite to their employment, become and remain military members of the National Guard unit in which they are employed and maintain the military grade specified for their technician positions.(1) The parties are covered by two collective-bargaining agreements (CBAs); the agreement for the Air National Guard was implemented in 1977, and the agreement for the Army National Guard was implemented in 1978. Both CBAs are in full force and effect.

    The dispute arose when the Employer proposed a new Policy Directive on smoking to supercede one last issued in September 1987. The parties disagree over what the current smoking policy is for employees. The Union maintains that some bargaining-unit employees who "work in State buildings on State land" are permitted to smoke indoors. The Employer denies that any of its employees may smoke indoors; rather, the ban on indoor smoking has been in effect at least since August 1997, when Executive Order 13058, "Protecting Federal Employees and the Public from Exposure to Tobacco Smoke in the Federal Workplace," went into effect.

ISSUES AT IMPASSE

    Essentially, the parties disagree over whether there should be exceptions to a general ban on indoor smoking and whether smoking shelters, including amenities for them, should be mutually agreed upon by the parties.

POSITIONS OF THE PARTIES(2)

1. The Employer’s Position

    The Employer’s position is that the Panel should impose the wording in its Order to Show Cause to resolve the parties’ dispute over smoking policy. In this regard, it is willing to include in its new directive provisions that would ban indoor smoking and require the Employer to designate outdoor smoking areas which are reasonably accessible to employees and provide a measure of protection from the elements. This is consistent with its view that the 1987 Policy Directive should be revised to make clear that smoking is prohibited in the workplace.(3) Moreover, the wording in the Panel’s Order to Show Cause concerning outdoor designated smoking areas is consistent with the Employer’s position that facility managers should designate outdoor smoking areas. The Union’s objections to any Employer-designated outdoor smoking area could be addressed through the parties’ negotiated grievance procedure, thereby providing the parties with a forum for resolving differences over smoking areas. Additionally, adoption of the wording in the Order to Show Cause would further the Employer’s goal to have the policy of the Adjutant General conform with the Federal Executive Order ban on indoor smoking, and the Governor’s 1997, Executive Memorandum, which also bans smoking in the workplace.

2. The Union’s Position

    The wording in the Panel’s Order to Show Cause should not be imposed. Rather, the Panel should adopt the Union’s proposal that indoor smoking be banned, except in: (1) designated areas that are enclosed and exhausted directly to the outside, away from intake ducts; (2) areas where a simple majority of employees on duty have agreed to allow indoor smoking; and (3) welding shops. Furthermore, smoking shelters should be placed in areas mutually agreed up