U.S. Federal Labor Relations Authority

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United States of America



In the Matter of





Case No.05 FSIP 136


    Local 307, American Federation of Government Employees, AFL-CIO (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 Justice, Federal Bureau of Prisons (FBOP), U.S. Penitentiary Allenwood, White Deer, Pennsylvania (Employer).

    After investigation of the request for assistance, which involves a dispute over implementation of a local smoking policy, the Panel determined that the matter should be resolved through an informal conference by telephone with Panel Member Richard B. Ainsworth. The parties were informed that, if a complete settlement were not reached during the informal conference, Member Ainsworth would notify the Panel of the status of the dispute. The notification would include, among other things, the final offers of the parties and his recommendations to the Panel for resolving the impasse. After considering this information, the Panel would resolve the matter by taking whatever action it deemed appropriate, which could include the issuance of a binding decision.

    Member Ainsworth spoke with the parties in an informal conference by telephone on December 14, 2005. Although various avenues were explored in an attempt to assist the parties in reaching a voluntary resolution, they were unable to resolve their dispute. Because the Employer raised a jurisdictional question during the conference, Member Ainsworth permitted each party to submit a page-limited statement presenting their views on the question and also summarizing their positions on the merits of the dispute. Member Ainsworth has reported to the Panel and it has now considered the entire record, including the parties' post-conference statements.


    The FBOP is responsible for "protect[ing] society by confining offenders in prisons and community-based facilities" and "provid[ing] work and other self-improvement opportunities to assist offenders to be law-abiding citizens." The Penitentiary, where affected employees work, is a high security facility housing 1,300 felons, about a quarter of who are serving life sentences.1/ Since July 2005, inmates have been prohibited from smoking. The Union represents 280 bargaining-unit employees who are part of a nationwide, consolidated bargaining unit of approximately 25,000 employees. They work in positions such as correctional officer, accounting technician, inventory management specialist, teacher, cook, physician assistant, case worker, counselor, drug treatment specialist, psychologist, recreation specialist, warehouse worker, and electrician. Although the outcome of the dispute affects other employees, the circumstances of correctional officers with no duty-free lunch breaks who work in the housing units were highlighted in discussions with the parties. The master collective bargaining agreement (MCBA) expired on March 8, 2001, but its terms and conditions remain in effect while parties at the national level attempt to bargain over its successor.


    The parties essentially disagree over where and when employees within the secure perimeter of the facility should be permitted to smoke.2/


1. The Employer's Position

The Employer proposes the following wording:

Outdoor Smoking: Outdoor smoking is only permitted in the following marked designated staff smoking areas. 1. Inside compound by the Lieutenants' Office; 2. Outside the main institution entrance; 3. Outside the powerhouse; and, 4. Outside the central warehouse. For locations 1, 3, and 4 above, shelters will be constructed to provide a measure of protection from the elements. Location 2 currently has a measure of protection from the elements. As a result, the construction of a shelter is not necessary. Staff will only be permitted to utilize these areas before work; after work; while on their 30 minute duty-free lunch break; or during the course of performing work (e.g., getting mail, etc.) for short durations (e.g., 5 minutes).

Preliminarily, the Employer contends that the Panel should determine not to retain jurisdiction over the parties' dispute because the issue of where employees may smoke at FBOP facilities already has been decided in Department of Justice, Federal Bureau of Prisons, Washington, D.C. and Council of Prison Locals 33, American Federation of Government Employees, AFL-CIO, Case No. 01 FSIP 184 (November 8, 2001), Panel Release No. 444 (BOP).3/ BOP gives wardens the exclusive discretion to designate particular locations for outdoor smoking, in part to avoid the potential for a hundred or more local-level impasses on the subject. The Union's proposal to continue to permit employees to smoke anywhere outdoors, as long as it occurs 25 or more feet from entrances, also is inconsistent with BOP because it would not provide the protections from the elements that the Panel's 2001 decision requires. As to when employees may smoke, this subject is covered by the MCBA and, therefore, is outside the Employer's duty to bargain. In this regard, in Article 18, Section a, the parties already negotiated the issue of "all breaks" at the national level. As a final matter concerning the preliminary questions it is raising, despite the letter sent by the Penitentiary's Warden during the initial investigation of the dispute denying any intent to question the Panel's jurisdiction, the Employer has not waived its right to contest subject matter jurisdiction, and cannot be forced to do so.4/

    On the merits of the issues, the decision about where smoking is to be permitted must take into consideration the security needs of the institution. The Employer believes that under the Union's approach, smoking would be permitted virtually everywhere within the compound and within sight of the inmates, and that security would be compromised and the staff put at risk. The portion of the Union's proposal permitting employees to request a duty-free lunch period during which they could smoke would be "logistically and administratively impracticable," require two shifts during the day, and the assignment of relief staff. Given these drawbacks, it would be better to adopt its proposal basically to build a pavilion within the secure compound where employees may smoke when on errands, during their duty-free lunch breaks, and before and after work. Employees without a duty-free lunch would have an opportunity to bid for one of the posts [perimeter tower, etc.] that allows "them the ability to 'unofficially' have a smoke break."

2. The Union's Position

    Under the Union's proposal, employees would continue to be able to smoke anywhere within the secure compound as long as they remain at least 25 feet from building entrances. To address problems that correctional officers in the housing units would have with access to the designated smoking areas proposed by the Employer, the Union proposes that they be able to request a duty-free lunch. If the Panel maintains the current practice regarding outdoor smoking, however, the Union would not oppose a Panel decision ordering it to withdraw that portion of its proposal. The current practice "allows all staff to monitor inmate activity while performing their job duties," and ensures that the 10-to-12 percent of staff believed to be smokers are given reasonable access to smoking areas during the workday. Given the fact that inmates lost their smoking privileges in July 2005, and have observed correctional officers smoking since then without reported incidents, the Employer's security concerns are "completely speculative."

    In response to the jurisdictional questions raised by the Employer, the circumstances of the disagreement at the Penitentiary are "significantly different from the original decision" in BOP. The Employer is incorrect in claiming that the Union's proposal is inconsistent with BOP. In this regard, a review of previous Panel decisions involving other parties reveals that it has ordered that smoking be permitted within a certain number of feet of entrances.5/ Therefore, the Union believes that the Panel can retain jurisdiction of this dispute under the Federal Labor Relations Authority's decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell).6/ The Panel decision in BOP should not serve to prevent it from taking jurisdiction of another dispute on the same issue because Panel "precedent is intended to provide guidance." Furthermore, permitting smoking at least 25 feet from entrances is consistent with BOP Program Statement P.S. P1640.04 and Executive Order 13058, Section 3,7/ as well as Department of Justice Order 128-20.105.3(e), where the expressed goal is to reduce employees' and visitors' exposure to second-hand smoke. On the matter of when employees may smoke, the Employer's allegation that the Union is attempting to renegotiate the issue of breaks is false. Rather, its proposal to permit employees to request a duty-free lunch is an appropriate arrangement. Finally, while there is no disagreement about where the Employer proposes to locate an outdoor smoking shelter for employees, the "restriction on smoking times in relation to the shelter" is a subject not addressed in BOP.


    With respect to the parties' threshold arguments, it is a well settled principle that subject matter jurisdiction can be raised at any stage of the Panel's process. After carefully considering the Employer's position, however, we conclude that the Panel has the authority to decide the merits of the parties' impasse over the Penitentiary's smoking policy. In our view, the Warden in this case exercised the discretion afforded the FBOP in BOP.8/ Therefore, based on the particular facts and circumstances of this case, the Employer's contention that the Panel should decline to retain jurisdiction is hereby rejected.

    Turning to the merits of the issues, we are persuaded that the current practice regarding outdoor smoking at the Penitentiary should be changed to require management to designate no more than one smoking area outside each housing unit at least 25 feet from building entrances. In our view, this approach accommodates the needs of correctional officers without a duty-free lunch period. Finally, because the Union does not oppose most of the wording the Employer proposes to include in the Penitentiary's supplemental smoking policy, provided the needs of correctional officers without a duty-free lunch period are met, it will be used as the basis for resolving the dispute, modified to make it consistent with the rationale discussed above.


    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 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the adoption of the following wording:

Outdoor Smoking: Smoking shall be permitted by staff in no more than one area outside each housing unit. The outside smoking areas shall be designated by management, and shall be at least 25 feet from any entrance. In addition, shelters will be constructed to provide a measure of protection from the elements at the following marked designated staff smoking areas: 1. Inside compound by the Lieutenants' Office; 2. Outside the powerhouse; and, 3. Outside the central warehouse. Staff will only be permitted to utilize these areas before work; after work; while on their 30 minute duty-free lunch break; or during the course of performing work (e.g., getting mail, etc.) for short durations (e.g., 5 minutes).

By direction of the Panel.

H. Joseph Schimansky
Executive Director

April 7, 2006
Washington, D.C.


Some unit employees are also assigned to work at the power plant and at a warehouse/garage facility that is outside the secure perimeter. Medium and low security facilities are also operated at this location; different locals represent employees at those facilities.



The Panel's resolution of the issues in dispute in this case will be incorporated into a supplemental smoking policy governing the Penitentiary.



BOP arose from a national level dispute over indoor and outdoor smoking, and nicotine replacement therapy. On outdoor smoking, the Panel ordered the following:

The Employer shall designate outdoor smoking areas which (a) are reasonably accessible to employees and (b) provide a measure of protection from the elements. The designated outdoor smoking areas shall only be used by employees.

This wording and a reference to BOP appear in the Agency's Program Statement (P.S.) 1640.04 on smoking, which became effective on July 15, 2004. In the rationale section of its decision, the Panel also stated, among other things, that in designating outdoor smoking areas throughout its facilities that meet the specified requirements, "no further negotiations are required" by the employer.



The Employer cites Weaver v. Hollywood Casino-Aurora, 255 F.3d 379, 381 (7th Cir. 2001).



The three cases the Union cites are: General Services Administration, Washington, DC and NFFE, Council of GSA Locals, Federal District 1, IAM&AW, AFL-CIO, Panel Case No. 01 FSIP 5 (February 21, 2001), Panel Release No. 438; Department of the Treasury, Internal Revenue Service, Washington, D.C. and Chapters 65 and 251, NTEU, Case No. 02 FSIP 153 (January 28, 2003), Panel Release No. 455; and Department of the Navy, Norfolk Naval Shipyard and Fleet Industrial Supply Center Norfolk, Portsmouth, Virginia and Local 1, IFPTE, AFL-CIO, Case No. 03 FSIP 184 (March 10, 2004), Panel Release No. 465.



Carswell makes clear that the Panel may apply FLRA precedent to resolve an impasse where a duty-to-bargain issue is raised if it already has found a "substantively identical" proposal negotiable.



Section 3 of Executive Order 13058, "Protecting Federal Employees and the Public from Exposure to Tobacco Smoke in the Federal Workplace," issued August 9, 1997, states:

The heads of agencies shall evaluate the need to restrict smoking at doorways and in courtyards under executive branch control in order to protect workers and visitors from environmental tobacco smoke, and may restrict smoking in these areas in light of this evaluation.



In this connection, on October 21, 2005, prior to the Panel’s determination to assert jurisdiction over the case, the Warden sent the Panel a letter containing the following statement: “Please note that we do not intend to challenge the jurisdiction of the Federal Service Impasses Panel.”