U.S. Federal Labor Relations Authority

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United States of America




In the Matter of





Case No. 03 FSIP 184


    The Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia (Employer or NNSY), 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 1, International Federation of Professional and Technical Engineers, AFL-CIO (Union).

   After investigation of the request for assistance, the Panel determined that the dispute, which concerns smoking policy, should be resolved through an informal conference by telephone with a Panel representative. The parties also were advised that if no settlement was reached, the Panel’s representative would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.

   Pursuant to this procedural determination, Chief Legal Advisor Donna M. DiTullio convened a teleconference with the parties on January 14, 2004. At its close, the parties remained deadlocked over whether smoking should be banned from a loading dock area. Ms. DiTullio has reported to the Panel, and it now has considered the entire record.


   The Employer’s mission is to repair and overhaul ships for the U.S. Navy. The Radiological Control Center provides inspection services and training for the nuclear work performed on the base. The Union represents approximately 2,000 professional and non-professional employees at the NNSY; of those, approximately 100 work for the Radiological Control Center in Building 276 and its Annex. Typical bargaining-unit positions within that activity are instructor, engineer, and engineering technician. The parties are covered by a collective-bargaining agreement (CBA) which, while "quite old," remains in full force and effect.

   The current smoking policy, dated May 16, 1996, covers employees who work for the Fleet and Industrial Supply Center (FISC) and other tenant command personnel, including those assigned to the Radiological Control Center.1/ Under this policy, smoking is permitted in the "smoking gazebos" located near buildings, as well as other outdoor areas, "so long as the smoker remains clear of personnel entrances and supply air intakes, and does not litter the area." In 1996, when the Radiological Control Center was moved to Building 276, an expansive warehouse-type facility that is approximately 1/10 mile long, employees stationed there began smoking on the loading dock adjacent to the building. This smoking area is at the far end of the building, not far from two entranceways, one known as Shop Store 98. The building overhang provides smokers with some protection from the elements.


   The parties disagree over whether smoking should be banned from the loading dock.


1. The Employer’s Position

   The Employer proposes to ban smoking on the northwest end of the loading dock. However, in an effort to provide smokers with some protection from the elements, the Employer would permit smoking in a nearby gazebo. The location of the gazebo would be adjusted so that it is a minimum of 25 feet away from the classroom trailer located near the Annex. In the event that bargaining-unit smokers find the gazebo filled to more than a comfortable capacity, or otherwise undesirable, they would be permitted to smoke in other areas, not specifically prohibited for smoking, which are in compliance with the parties’ negotiated Instruction on Smoking.

Smoking should be banned from the loading dock to better protect non-smokers, who use the entranceways off the loading dock, from the hazards of second-hand tobacco smoke. Currently, persons who use two of the entranceways to the building that are off the loading dock must walk through a designated smoking area to gain access to the building. Furthermore, smoke from the loading dock area has drifted into open windows. Providing a gazebo as the designated covered smoking area would give employees a sheltered and enclosed space to smoke, particularly during the winter when the gazebo is equipped with Plexiglas panels.2/ If employees do not choose to smoke in the gazebo, they may smoke in other places that are not prohibited by NNSY policy. Another labor organization representing employees who work in Building 276 has agreed that members of its bargaining unit will not smoke on the loading dock and are to use the gazebo for smoking. The proposal, therefore, would provide a consistent policy for all employees who work in Building 276 and avoid tensions.

2. The Union’s Position

   The Union proposes that the practice of using the loading dock as a designated smoking area should continue. To keep smokers away from entranceways, however, a line should be painted 50 feet from the entranceway to Shop Store 98 which states: "No Smoking Beyond This Line." Designating the smoking area 50 feet from doorways would help ensure that second-hand smoke does not drift through the doorways closest to the designated smoking area. The loading dock should continue to be a designated outdoor smoking area because it has an overhang which affords employees a measure of protection from the elements on inclement days. Contrary to the Employer’s assertion, persons accessing the building through the Shop Store 98 doorway as well as the doorway closest to it, do not have to walk through the designated smoking area on the loading dock to enter or leave the building; rather, there are steps directly in front of those doorways leading from the parking lot which allow direct access to the building. The long-standing practice of permitting smoking on the loading dock of Building 276 should be maintained because, unlike the gazebo, the loading dock is large enough to accommodate all of the smokers in that portion of the building who include not only employees, but military personnel and civilians who are attending classes in the Radiological Control Center.


   Having carefully reviewed the evidence and arguments presented in support of the parties’ positions, we are persuaded that the Union’s proposal provides the more reasonable basis for resolving the impasse. In our view, the Employer has not demonstrated a need to eliminate the designated outdoor smoking area on the loading dock. Among other things, it has offered only anecdotal evidence that smoke from the designated area has drifted into the building. In addition, contrary to the Employer’s assertion, there appear to be alternative routes to the Shop Store 98 entranceway, as well as another nearby entranceway, allowing individuals to avoid walking through the designated smoking area to enter and exit the building. Moreover, posting a sign on the loading dock that notifies smokers of the restricted area in which they may smoke, as the Union proposes, should minimize the possibility of second-hand smoke entering the building when the doors open. Finally, the gazebo may not be large enough to accommodate all those who may wish to smoke in a sheltered area, and may not be adequately ventilated, particularly in the winter months when Plexiglas panels are installed. Accordingly, we shall order the adoption of the Union’s proposal.


   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 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 following:

   The parties shall adopt the Union’s proposal.

By direction of the Panel.

H. Joseph Schimansky
Executive Director


March 10, 2004
Washington, D.C.


1. Employees who work for FISC are represented by a different labor organization, Local 53, American Federation of Government Employees (AFGE). Recently, Local 53, AFGE agreed to adopt the Employer’s proposal that the designated smoking area for Building 276 and the Annex be moved from the loading dock to a gazebo located near a parking lot for the building; Local 1, IFPTE, however, did not agree to the Employer’s proposed modifications to the smoking policy.

2. The doorway to the gazebo would have a screen to allow for ventilation.