United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE ARMY
LOCALS 15 AND 2119,
Case Nos. 05 FSIP 96,
DECISION AND ORDER
The Department of the Army, Rock Island Arsenal (RIA), Rock Island, Illinois (Employer) filed requests for assistance with the Federal Service Impasses Panel (the Panel) to consider a negotiation impasse under the Federal Labor-Management Relations Statute (the Statute), between it and Locals 15 and 2119, American Federation of Government Employees (AFGE), AFL-CIO and Local R7-68, National Association of Government Employees (NAGE), Service Employees International Union (Unions).
Following an investigation of the requests for assistance, which involve the Employer's decision to close the smoking rooms in Buildings 60, 212, and 350, the Panel determined that the matter should be resolved through written submissions with rebuttal statements. The parties were informed that after considering the entire record, the Panel would take whatever action it deems appropriate to settle the matter, which may include the issuance of a Decision and Order. Written submissions from both parties, and a rebuttal statement from the Union, were received in accordance with the Panel's determination, and it has now considered the entire record.
The Employer's mission is the manufacture and assembly of all phases of large and small weapons systems, components of such systems, spare parts, prototypes, and advanced engineering models. In addition, the Employer provides administrative, logistical, and facility support services to the U.S. Army organizations located at RIA. AFGE, Local 15 represents 2,500 professional and nonprofessional employees; AFGE, Local 2119 represents 713 WG employees; and NAGE, Local R7-68 represents 121 professional employees. The status of AFGE, Local 15's collective bargaining agreements (CBAs) are as follows: the Headquarters and Army Field Support Command (AFSC) CBA expired on July 9, 2005; the RIA CBA expired on September 3, 2005; the Tank Automotive and Armament Command (TACOM) CBA is due to expire on May 15, 2006. AFGE, Local 2119's CBA expired on September 22, 2005. NAGE, Local R7-68's CBA expired on June 16, 2005. The terms and conditions of the CBAs that have expired will remain in effect until successor agreements are negotiated.
ISSUE AT IMPASSE
The parties disagree over whether to close the designated smoking rooms in Buildings 60, 212, and 350.
POSITIONS OF THE PARTIES
1. The Employer's Position
The Employer proposes to: (a) close the smoking rooms on a staggered basis with Building 60 closing 60 days after resolution of the dispute, Building 350, 90 days after resolution, and Building 212, 120 days after resolution; (b) notify the workforce of the changes through a variety of media; (c) continue to offer smoking cessation clinics, at no cost to the employee, through the Employee Assistance Program (EAP) and reimburse employees' out-of-pocket expenses for prescription patches or other doctor prescribed smoking cessation medication on a one-time basis; (d) provide counseling through its EAP on an as needed basis; (e) maintain current outdoor smoking shelters; (f) ensure handicapped outdoor smoking shelters in areas where needed; and (g) work with the Unions to identify the need for additional outdoor shelters.
The proposal should be adopted because it is in compliance with Executive Order (E.O.) 13058 and Department of Defense Instruction (DoDI) 1010.15, which requires a smoke-free workplace. Moreover, closing the smoking rooms is consistent with the intent of a "provisional" Memorandum of Agreement (MOA) negotiated in 1994 that was to provide for the transition to a smoke-free workplace. This intent is further supported by the Commander's December 11, 2000, policy statement on, among other things, transitioning toward a smoke free workplace. Limiting smoking to outdoor smoking shelters is a viable alternative to keeping indoor designated smoking rooms open; outdoor shelters, while unheated, provide a measure of protection from the elements and are in close proximity to all occupied offices. Likewise, the incentives offered to support smokers through the transition to a completely smoke free workplace "go beyond those normally offered by Agencies or ordered by the Panel." The proposal also is "consistent with previous Panel decisions based on the employee complaints and complying with the Agency's regulation."
The designated smoking areas should be closed because the "maintenance and operating costs have continued to mount over and above the cost of regular administrative space" and is no longer cost effective. The direct cost of maintaining smoking rooms is approximately $5,800 annually. Additional costs are incurred when employee complaints have to be investigated and examined.1/ Because of the "risk and liabilities of exposing employees to second hand or environmental tobacco smoke [ETS]," each complaint is investigated, "even in the most mundane" circumstances. Problems have been cited in Building 350 relating to "weather conditions, wind direction and the number of smokers in the room at various times." While the results of the investigations have shown "the room to meet established criteria for air handling and ventilation, complaints continue," making the Employer vulnerable to claims of ETS exposure from employees working in proximity to the smoking rooms.
The Employer's concerns are also growing regarding "housekeeping problems, potential fire hazards, and general conditions of the rooms." The rooms' users are not "self-cleaning," as previously agreed to, which contributes to the increasing costs of maintenance. The effects of the smoke on the rooms' infrastructure are "readily apparent and clearly show the need for continuous maintenance and rehabilitation to keep the rooms at a minimal state of readiness for use." Since the DoDI strictly prohibits assigning employees to offices where smoke is present, the rooms cannot be cleaned during times when smoking rooms are being used. This prohibition exacerbates these maintenance concerns and "force[s] the execution of an additional service contract for cleaning services." Furthermore, the smoking rooms "no longer serve the purpose for which they were originally intended," i.e., giving cafeteria customers the option of a smoking or non-smoking setting to eat meals, and insulating cafeterias from any decline in business due to the policy. Instead, the rooms have become "a haven for smokers." Management's observations of the smoking rooms show "few employees actually purchase food at the cafeterias and use the smoking areas to eat their meals." Rather, they "eat in the general seating areas and then retire to the smoking seating areas to smoke."
2. The Unions' Position
The Unions propose that the smoking rooms remain open. The agreement establishing designated smoking rooms has been in place for 10 years. Each smoking room meets the requirements for a smoke free workplace as set forth in E.O. 13058, DoDI 1015.15, Army Regulation 600-63, and Rock Island Arsenal Regulation (RIAR) 1-19. Specifically, the rooms "are enclosed and exhausted directly to the outside and away from air intake ducts, and are maintained under negative pressure (with respect to surrounding spaces) sufficient to contain tobacco smoke within the designated area." The evidence the Employer supplies confirm the Unions' position that the ventilation and exhaust systems in the smoking rooms are working properly. Further, the RIAR allows smoking in cafeterias and eating facilities "if adequate space is available for non-smoking patrons and ventilation is adequate to provide them a healthy environment." The parties agreed it would be best to designate smoking rooms adjacent to the cafeterias in order "to prevent non-smokers from exposure to second hand smoke."
The maintenance cost data the Employer provides to justify closing the smoking rooms is flawed. In this regard, the $5,800 the Employer cites includes $1,344 per year to clean room 229, which should not have been included since the room is closed. As a practical matter, the smoking rooms have already been equipped to meet air quality standards; therefore, "there are no extraordinary costs associated with the existence of these smoking rooms." The only costs that can be "directly attributed" to the indoor smoking rooms are the heating, ventilation, and air conditioning (HVAC) costs. The Employer also indicates that additional costs have been incurred in maintaining the smoking rooms, but does supply the dates when these costs occurred or "what the corrective action was that was so costly." The other costs mentioned would have been incurred anyway as they are normal maintenance cost for any rooms in the buildings. As to any special cleaning requirements, "the rooms are only open for use during cafeteria hours." The rooms are available for cleaning within a "couple of hours after they are closed and the air exchange rate would have cleared out the [ETS]."
Further, the Employer's survey data "do not indicate the actual usage of the rooms." It performed its surveys "by standing and observing the entries into the [Building] 212 smoking area a couple of times for short periods (15 minutes or less)." Actually, smokers and nonsmokers use the cafeterias as break rooms before and after breakfast and lunch service; employees do not always purchase food or snacks when in the cafeteria. Nor is there anything in the RIAR that states that employees must eat their entire meals in the designated smoking areas. Finally, an order from the Panel to adopt the Union's proposal would be consistent with previous Panel rulings requiring an employer to show that a proposed smoking policy "adversely affected the health of others or that it had an impact on the mission of the agency."2/
Having carefully reviewed the evidence and arguments presented in support of the parties' positions on this issue, we are not persuaded that the Employer has demonstrated the need to change the status quo. In this regard, it is undisputed that the designated smoking rooms in Buildings 60, 212, and 350 meet the requirements for the exception to the general prohibition on smoking in Federal workplaces specified in Government-wide regulations and E.O. 13058. In our view, these authorities were designed to accommodate the needs of smokers without exposing nonsmokers to ETS. The Employer's cost estimates and anecdotal evidence are insufficient to overcome the fact that the current smoking rooms effectively balance the interests of smokers and nonsmokers. Therefore, we shall order the adoption of the Unions' 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 Unions' proposal.
By direction of the Panel.
H. Joseph Schimansky
December 16, 2005
The Employer submitted three employee complaints as follows: (a) a supervisor complained about smoke leaking from the Building 350 smoking room into work areas on windy days; (b) while investigating the ventilation in the Building 350 smoking room, the mechanical engineer complained that the “floor, walls, windows, [and] tables are filthy” and stated that it needed to be “temporarily closed for cleaning and restoration”; and (c) an employee complained about smoke entering Building 60 office windows on windy days. The Employer also provided photographs of the interiors of the rooms.
Among other cases, the Unions cite the Panel’s Decision and Order in Department of the Air Force, Headquarters Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio and Council 214, American Federation of Government Employees, AFL-CIO, Case No. 03 FSIP 175 (March 23, 2004), Panel Release No. 466, concerning use of smokeless tobacco in the workplace.