United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
OF THE TREASURY
45, nATIONAL tREASURY EMPLOYEES
Case No. 04 FSIP 29
DECISION AND ORDER
The National Treasury Employees Union (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 (Statute), 5 U.S.C. § 7119, between it and the Department of the Treasury, Internal Revenue Service, Oklahoma City, Oklahoma (Employer).
After investigation of the request for assistance, the Panel determined that the dispute, which concerns the closure of a break room for smokers (Room 228), should be resolved through written submissions, including rebuttal statements. The parties also were advised that, after considering the entire record, the Panel would take whatever action it deems appropriate to resolve the dispute, which could include the issuance of a binding decision. The parties’ final offers and written submissions, including rebuttal statements, were received pursuant to this procedure, and the Panel has now considered the entire record./
The Employer’s mission is to “provide America's taxpayers top quality service by helping them understand and meet their tax responsibilities and by applying the tax law with integrity and fairness to all.” Chapter 45 represents approximately 420 bargaining-unit employees, about 300 of whom are located at the Oklahoma City facility. These employees work in positions such as revenue agent, revenue officer, customer service representative, and clerk, at grades GS-4 through -13. The parties’ master collective bargaining agreement (MCBA) was negotiated in July 2002 and is due to expire in July 2006.
ISSUE AT IMPASSE
The parties’ disagree over whether indoor smoking should continue to be permitted in Room 228 of the Oklahoma IRS facility and, if not, whether the Panel should order a designated outdoor smoking area that is protected from the elements.
a. The Employer’s Position
The Employer proposes that Room 228 remain closed, i.e., that the status quo be maintained./ Initially, IRS was the only Federal agency in the building, and the room was designated as an indoor smoking area because it was located on the second floor away from employees. After the Oklahoma City bombing, other Federal agencies moved into the second floor of the building. Until recently, the General Services Administration (GSA) had not heard about any employee complaints regarding the room. In 2002, however, GSA began receiving numerous complaints indicating an intolerable level of smoke on the second floor. As a result of these complaints, in November 2002, GSA ordered a study of Room 228 by one of its industrial hygienists. The report showed that the room was in compliance with Executive Order 13058 (E.O.)/ and could continue as a break room for smokers. Even though the room satisfied the E.O. requirements in November 2002, GSA continued to receive complaints from non-smokers, so in March 2003, a second study of Room 228 was performed. According to the second industrial hygienist report, the room was not in compliance with the E.O., and could no longer be sanctioned as a break room for smokers. Upon receipt of the GSA determination, the Employer initiated negotiations with the Union over the closing of the room. On April 11, 2003, before negotiations were concluded, the room was closed by GSA. In September 2003, the room was returned to GSA and is no longer leased by the Agency.
Because Room 228 does not meet the standards of the E.O., it cannot be reopened. Specifically, the industrial hygienist’s March 2003 report reveals that the room’s ventilation system is insufficient to maintain negative air pressure./ In this regard,
If Room 228 were to be re-opened as a designated smoking area, initially GSA would have to agree to re-let the space to the [Employer], to the designation of Room 228 as a smoking area, and to the expenditure of the necessary funds to re-commission the area for that use. GSA representatives have indicated that GSA is unwilling to re-let Room 228 to the [Employer] or to designate it a smoking area.
In addition, the private-owner would also have to consent to renovate the room and make its ventilation system compliant with the E.O.; “none of these action are within the control of the Agency” (emphasis in original).
In response to the Union’s assertions that the tests of the room conducted in March 2003 were flawed, not only did the industrial hygienist identify that the exhaust system was functioning properly at that time, but the “methodologies utilized [are] the current generally accepted scientific methodologies to ascertain carbon dioxide readings and the existence of negative air pressure.” In addition, no malfeasance occurred either by act of the Employer or GSA with respect to the decision to close Room 228.
With respect to whether the Panel should order the Employer to designate an outdoor smoking area, the owner of the building is unable or unwilling to have any kind of smoke shelter or awning built or developed on its property./ Other options have been considered, such as providing a shelter in the green space next to the building, or using the loading dock or utility easement as the smoking area; however, none of these are feasible solutions. Hence, the Panel should order that the status quo be maintained, i.e., employees should fend for themselves to find a suitable outdoor location and protection from the elements while smoking.
b. The Union’s Position
The Union has offered two proposals during the course of the Panel’s proceedings. In its initial written submission, the Union proposes:
To reopen and retest the smoking room with a neutral tester. If in fact the room fails to qualify under federal standards after retesting, the Union will re-urge our second proposal - a designated smoker’s area away from the building that is reasonably accessible to employees and protected from the elements.
In its rebuttal statement, it proposes:
The smoking room must be reopened and properly outfitted to prevent second-hand smoke from migrating to adjacent workspaces.
According to the Union, “the validity of the tests conducted and conclusions reached by GSA are suspect” and unscientific, and the Employer is “hiding behind GSA’s skirts.” During the March 2003 tests, “the ventilation system had been turned off or dismantled, skewing and invalidating the test results.” This was corroborated by the results of a Union-initiated test conducted by the Occupational Safety and Health Administration after GSA’s March 2003 report, which showed the carbon dioxide levels in and around the Room 228 were within the acceptable range. In view of the testing irregularities, the proper remedy is to re-open the room until such time as an open and credible evaluation determines that the room is not in compliance with the E.O. and, hence, should no longer operate as a break room for smokers. On the issue of an acceptable outdoor location, the Employer has “rebuffed [the Union] in its efforts to convince the [Employer] to provide a reasonable outdoor alternative to an indoor smoking room.” Throughout these negotiations, the “[Employer] repeatedly deflects responsibility to either GSA or the building owners,” rather than standing-up for its employees.
After carefully reviewing the evidence and arguments presented by the parties, we are constrained to adopt the Employer’s position to resolve their dispute. It is well established that an employer is obligated to negotiate over changes to its employees’ conditions of employment only to the extent of its discretion./ Here, the Employer’s discretion would be limited to making requests or recommendations to the entities that have the decision-making authority to re-open Room 228, or to designate an outdoor smoking area for the use of bargaining-unit employees. In this regard, GSA unfortunately has added to the difficulty of fashioning an appropriate order by stating that it will not condone the use of Federally-owned or leased interior space for the purpose of the legally permissible activity of smoking. In addition, the owner of the facility is unwilling to alter the building’s exterior to provide smokers with a measure of protection from the elements. In our view, given these unique circumstances, there would be no point in directing the Employer to make requests or recommendations to those entities./ Accordingly, we shall order the Union to withdraw its proposals.
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 Union shall withdraw its proposals.
By direction of the Panel.
/ Subsequent to the receipt of their written submissions and again,
after their rebuttal statements, the Panel Representative assigned to the
case conducted conference calls with the parties to obtain additional
information which also has been considered.
/ The Employer explains that,
building located at 55 No. Robinson is a privately-owned building and is
leased by GSA for use by other Federal government agencies.
The [Employer], in turn, leases the space it occupies from GSA.
As a sub-lessee, the [Employer] has no authority to circumvent or
overrule decisions made by the building owner, M.E. Harris & Co., or GSA
as to the use of the 55 No. Robinson facility. … [T]he decision to close
the smoking break room was made by GSA, the primary lessee of the 55 No.
/ This E.O. establishes a smoking ban in all Federal locations, except,
[t]he order does not apply in designated smoking areas that are enclosed and exhausted directly to the outside and away from air intake ducts, and are maintained under negative air pressure (with respect to surrounding spaces) sufficient to contain tobacco smoke within the designated area.
/ Initially, the Employer stated that the room was not vented externally. During a conference call with the parties, however, a GSA representative clarified that the room was vented to the outside over the loading dock. During these same discussions, it became apparent that the lack of sufficient negative air pressure was the reason the room had been determined by GSA to be in non-compliance with the E.O.
/ Oklahoma City has issued an ordinance that prohibits smoking within 25 feet of an entrance to a building.
/ See, for example, Library of Congress and Congressional
Employees Association, 15 FLRA 589 (1984).
/ This would also be true of such lesser steps as ordering the Employer to request GSA to retest Room 228.