United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF THE INTERIOR
FISH AND WILDLIFE SERVICE
LOCAL 3942, AMERICAN
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 90 FSIP 206
DECISION AND ORDER
Local 3942, 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 section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the Department of the Interior, Fish and Wildlife Service Finance Center, Denver, Colorado (Employer).
The Panel determined that the dispute should be resolved on the basis of written submissions from the parties with the Panel to take whatever action it deemed appropriate to resolve the impasse concerning a smoking policy. Submissions were made pursuant to these procedures. Also, Panel member Charles A. Kothe visited the Employer's premises to inspect the facility; his observations have been reported to the Panel which has now considered the entire record.
The mission of the Employer is to process payroll, reimburse employees for their travel expenses, and perform all other financial services germane to its daily operation. There are approximately 90 bargaining-unit employees who occupy clerical and payroll positions. The parties have agreed to extend their term agreement which was to expire in July 1990.
The Employer is the only Government agency in the privately-owned building, and it occupies all of the office space on the third floor and part of the space on the fourth floor. In 1986. the City of Denver Passed an ordinance which requires that a smoke-free work environment be provided to employees working in public buildings who request it. Shortly after enactment of the ordinance, the Employer established designated-smoking areas in order to accommodate smokers and nonsmokers. Thereafter, a number of complaints were made by nonsmokers concerning environmental tobacco smoke drifting from the designated-smoking area; as a result, smoking was banned by the Employer.
ISSUE AT IMPASSE
The parties are at impasse over whether the Employer should provide an indoor designated-smoking area for employees.
1. The Employer's Position
The Employer proposes to prohibit smoking in all spaces it both controls and occupies. Smoking would be permitted during breaks outside the building. Employees who desire to quit smoking would be provided counseling and cessation services by the Employer.
The Employer contends that providing a safe and healthy environment for its employees, free of smoke contaminants, outweighs the personal desires of smokers. Banning smoking follows the guidance of both the Environmental Protection Agency and the Surgeon General which suggests that in order to protect nonsmokers from exposure to environmental tobacco smoke, smoking should be prohibited in buildings or restricted to separately ventilated areas.(1) Due to the physical layout of the office space a separate ventilation system would not be possible. Moreover, the building's private owner has determined that it would be cost prohibitive to install equipment that would adequately ventilate the office space should smoking be allowed there
2. The Union's Position
The Union proposes that the Employer resume providing bargaining-unit employees with an indoor designated-smoking area. It contends that the designated-smoking area previously located on the fourth floor of the building was equipped with commercial smoke-eaters which successfully filtered impurities from the air. Despite the complaints and objections of a minority of employees regarding the smell of smoke, the rights of those persons who choose to smoke should not be impinged upon. Further, the Employer has produced no scientific evidence that there was an unacceptable level of toxic chemicals in the air. Finally, the Union maintains that the Employer's decision to close the designated-smoking area has forced employees to smoke outside in an area that is not protected from the elements.
Having considered the evidence and arguments in this case, we conclude that the Employer's proposal offers a reasonable resolution of the dispute. We are persuaded that it is not practicable to designate an indoor smoking area where the hazards of environmental tobacco smoke could be minimized. In this regard, although the office is equipped with a commercial-sized smoke-eater, the evidence reveals that when there was a designated-smoking area, employees nonetheless were affected by the smell of emanating tobacco smoke. In order to improve the elimination of environmental tobacco smoke, a more effective ventilation system would have to be installed; however, such an endeavor would be too costly.
We note that employees of the other tenants do not smoke inside the building. Allowing smoking by the Employer's employees would defeat the objectives in providing a smoke-free environment since recirculated air contaminated with tobacco smoke from the Employer's designated-smoking area would affect all employees in the building. Accordingly, we will not order that the Employer provide an indoor smoking area.
Although it is appropriate for there to be some accommodation for smokers when there is a complete ban on smoking indoors, the evidence reveals that due to the circumstances in this case, particularly the exterior design of this building, it would not be feasible to establish an outdoor designated-smoking area to provide a modicum of protection from the elements.(2)
Finally, the smoking cessation assistance offered by the Employer should assist smokers who take advantage of it in adjusting to a smoke-free environment.
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 pursuant to 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.
By direction of the Panel.
Linda A. Lafferty
March 1, 1991
1. See U.S. Environmental Protection Agency, "Indoor Air Facts No. 5, Environmental Tobacco Smoke," U.S. Environmental Protection Agency, Office of Air and Radiation, June 1989; and The Health Consequencesof Involuntary Smoke. A Report of the Surgeon General, DHHS Pub. No. (CDC) 87-8398, U.S. Department of Health and Human Services, Public Health Services, Centers for Disease Control, Center for Health Promotion and Education, Office of Smoking and Health. 1986.
2. The Panel representative who visited this site observed that there were no areas outside of the building to establish a smoking area that would provide protection from the elements