United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE AIR FORCE
MacDILL AIR FORCE BASE
MacDILL AFB, FLORIDA
LOCAL 153, NATIONAL FEDERATION
OF FEDERAL EMPLOYEES
Case No. 90 FSIP 58
DECISION AND ORDER
Local 153, National Federation of Federal Employees (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of the Air Force, MacDILL Air Force Base, MacDill AFB, Florida (Employer).
The Panel determined that the dispute should be resolved on the basis of written submissions from the parties. After considering the entire record, the Panel would take whatever action it deemed appropriate to resolve the impasse. Written submissions were made pursuant to these procedures and the Panel has considered the entire record.
The Employer is a training wing for the Air Force. The Union represents a bargaining unit of approximately 800 nonprofessional General Schedule and Wage Grade employees. The dispute herein, however, affects only 75 employees of the Employer's Civil Engineering Squadron who maintain and repair the Base's runways, buildings, roads, and grounds. The parties' collective-bargaining agreement is in effect until February 1992.
The dispute arose during negotiations which ensued after the Air Force issued a regulation, AFR 30-27, concerning the establishment of a smoking policy in all facilities where Air Force personnel are located. Currently, under a memorandum of understanding between the parties effective August 2, 1988, employees are permitted to smoke in designated areas, mainly restrooms, within the approximately 23 buildings under the control of the Civil Engineering Squadron.
The parties disagree over a smoking policy for Civil Engineering Squadron employees.
1. The Employer's Position
The Employer proposes to prohibit smoking in all Civil Engineering Squadron buildings. In support of its position, it maintains that such a policy would ensure that nonsmokers are protected from second-hand tobacco smoke which the Surgeon General of the United States has identified as a health hazard.(1) Furthermore, creating a more healthful work environment may have a positive effect on employee absenteeism and, as a result, productivity. Designated smoking areas could be outside the buildings, thus providing employees with a place to smoke. The smoking ban in facilities would eliminate a potential problem which an employee might encounter in asking others not to smoke, and may help gradually to lessen the use of tobacco on the Base. Finally, the Employer contends that the Union's proposals concerning the establishment of designated smoking areas violates its right to determine its budget under section 7106(a)(1) of the Statute, and is contrary to 41 C.F.R. 101-20.105-3(b)(1) and (c)(2)(iii), which prohibits smoking in general office space unless the space is configured to minimize exposing nonsmokers to second-hand smoke.
2. The Union's Position
The Union proposes that the smoking policy include the following accommodations for smokers: (1) every floor and/or shop in all Civil Engineering Squadron facilities would have a designated smoking area that has heat and air conditioning as well as adequate air filtration to accommodate smoking; (2) any occupant of a single private office could designate it as a smoking area; (3) smoking would be permitted in Government vehicles unless a nonsmoker objects; (4) if a smoker works in an area designated as nonsmoking, he or she would be allowed to leave in order to take a short break, as needed; (5) smokers who desire to quit smoking would be provided with counseling and rehabilitation services, at no cost to the employee and during workhours. Additionally, the Union proposes that either party could reopen the agreement between 30 and 60 days following implementation; thereafter, it could be reopened only by mutual consent of the parties.
The Union maintains that its proposal provides for fair and equitable treatment of all employees, while the Employer's proposed total ban on smoking would tend to relegate smokers "to the status of second-class citizens." Moreover, a complete ban on smoking in buildings is not necessary for the Employer to carry out its mission. The designation of smoking areas inside buildings is consistent with prior Panel decisions. Prohibiting smoking in vehicles when a nonsmoker objects is an attempt to balance the rights of nonsmokers.
Having considered the evidence and arguments in this case, we conclude that the parties should adopt a modified version of the Employer's proposal. In our view, although the Union's proposal would limit smoking to designated areas, this restriction does not protect sufficiently the health of nonsmokers.(2) The Employer's proposal for a total ban on smoking in buildings, however, is consistent with the Panel's objective to ensure that employees have a healthful work environment free from the contamination of second-hand tobacco smoke. In a recent case before the Panel, a factfinding hearing was held which addressed the issue of indoor tobacco smoke, and the difficulties in eradicating it.(3) Expert testimony was provided at the hearing that "the establishment of a de minimus risk level of environmental tobacco smoke ... would require an impractical level of ventilation which is 226 times greater than the recommended standards, i.e., the equivalent of a 'windstorm,' for a typical office building where smoking was not restricted."(4) Furthermore, expert testimony was provided that indoor tobacco smoke "is a leading factor in causing 'sick building[s],' buildings that generate an inordinate amount of air pollution resulting in increased health problems for occupants."(5)
In our view, the health of all employees is best protected by eliminating the presence of tobacco smoke in buildings. As for those who choose to smoke, however, there should be some accommodation. Although the Employer has alluded to the possibility of designating smoking areas outside of buildings, its proposal provides no assurance that they would, in fact, be designated. Therefore, in order to ensure that smokers are accommodated the Employer should designate outdoor smoking areas which (1) are reasonably accessible to employees, and (2) provide protection from the elements.
Pursuant to the authority vested in it by section 7119 of the Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under section 2471.6(a)(2) of the Panel's regulations, the Federal Service Impasses Panel under section 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Employer's proposal, modified to provide for outdoor designated smoking areas selected by the Employer which (1) are reasonably accessible to employees, and (2) provide protection from the elements.
By direction of the Panel.
Linda A. Lafferty
April 27, 1990
1. Department of Health and Human Services, The Health Consequences of Involuntary Smoking. A Report of the Surgeon General. DHHS Pub. No. (CDC) 87-8398. U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control, Center for Health Promotion and Education, Office on Smoking and Health. 1986.
2. Although the Employer has raised questions concerning the negotiability of certain aspects of the Union's proposal, we find it unnecessary to address those claims inasmuch as we are adopting, in essence, the Employer's proposal.
3. Department of Veterans Affairs. Veterans Health Services and Research Administration. Washington, D.C. and National VA Council. American Federation of Government Employees, AFL-CIO, Case No. 89 FSIP 198 (April 27, 1990).
4. Id., Factfinder's Report, n. 3.
5. Id., Factfinder's Report, p. 6.