In the Matter of )
DEPARTMENT OF THE AIR FORCE )
COLORADO AIR NATIONAL GUARD )
ENGLEWOOD, COLORADO )
and ) Case No. 91 FSIP 26
MILE HIGH CHAPTER, ASSOCIATION )
OF CIVILIAN TECHNICIANS )
The Mile High Chapter, Association of Civilian Technicians (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, Colorado Air National Guard, Englewood, Colorado (Employer).
The Panel determined that the impasse should be resolved pursuant to written submissions from the parties with the Panel to take whatever action it deemed appropriate to resolve the impasse. Submissions were made pursuant to these procedures and the Panel has considered the entire record.
The Employer is a state militia and reserve component of the U.S. Air Force whose mission is to service aircraft, operate and maintain air fields, provide training, and maintain a state of readiness for wartime as well as certain domestic missions. The Union represents a bargaining unit consisting of approximately 500
employees; of those, approximately 350 hold positions as civilian technicians under Title 32; the others are Title 5 employees who hold positions such as avionics technician, communications equipment repairman, hydraulic technician, aircraft mechanic, electrician, firefighter, and payroll clerk. On February 28, 1991, the parties executed a new collective-bargaining agreement which is in effect for 3 years. Issues concerning a smoking policy were severed during term negotiations.
Bargaining-unit employees are physically located in about 12 buildings at Buckley Air National Guard Base; while there are other tenant organizations on the base, bargaining-unit employees are collocated with employees of other agencies in only 1 or 2 buildings. Other bargaining-unit employees are stationed at a radar facility in Greeley, Colorado, and occupy exclusively the two buildings there.
ISSUES AT IMPASSE
The parties disagree over the establishment of designated-smoking areas and breaks for smokers.
1. The Employer's Position
The Employer proposes that smoking be banned in buildings as well as in aircraft or vehicles operated by the Colorado Air National Guard; the restriction would not apply to outdoor areas, privately-owned vehicles, and the Camana Club, a social eating establishment. Smoking cessation clinics would continue to be offered to employees at no cost to them. With respect to smoke breaks, they would be considered rest periods and, therefore, subject to the time limitations stated in existing regulations.
According to the Employer, its proposal would fully implement the Adjutant General's "Policy for a Smoke-free Workplace" which was first issued in 1985. Banning smoking indoors is consistent with the recommendations of the U.S. Surgeon General who has labeled smoking the largest single preventable cause of death in America. Furthermore, eliminating smoking in the workplace would tend to encourage smokers to kick the habit -- a desired result since a study conducted in 1983 by Dr. William Weiss of Seattle University shows that employees who smoke cost employers more in terms of absenteeism, medical care, and lost productivity. A ban on indoor smoking would protect nonsmokers from the risks associated with breathing second-hand tobacco smoke.
The Employer maintains that its proposal is consistent with the Panel's interest, as set forth in several prior decisions concerning smoking policies, to provide employees with a smoke-free workplace, while accommodating smokers, when feasible. Reasonably accessible smoking areas currently exist outside to accommodate smokers. To construct enclosed and heated outdoor smoking shelters would be a costly venture; moreover, taxpayers should not be asked to finance employees' smoking habits since smoking usually results in loss of good health and, therefore, would interfere with the Employer's mission to maintain a ready workforce. A survey taken in 1989 revealed that approximately 26 percent of all full-time employees smoke; since smokers are in the minority, the Employer should not be required to incur any significant costs to accommodate them. Finally, as a further accommodation to smokers, the Employer would continue to offer, free of charge, smoking cessation clinics for employees and their immediate family members and, when possible, on duty time.
With respect to breaks, smokers should be limited to smoking during their lunch and rest breaks; pursuant to Technician Personnel Regulation 610.1, "the rest break may not exceed 15 minutes during each 4 hours of continuous work." Therefore, not only would it be inequitable to give smokers unlimited breaks as the Union proposes, since nonsmokers are not entitled to them, it also would be contrary to regulations.
2. The Union's Position
The Union proposes that designated-smoking and no-smoking areas should be established throughout all facilities. Smoking areas should have adequate space and ventilation and be furnished with enough chairs to accommodate a reasonable number of smokers at one time. Smoke breaks may be taken in addition to rest breaks, providing employees do not abuse the privilege. The Employer should continue to offer smoking cessation clinics at no cost to employees, and employees should not be harassed for using tobacco while on the job.
Essentially, the Union contends that adopting its proposal would tend to ensure equitable treatment for smokers and nonsmokers. Since nonsmokers have been provided with ventilated, heated, and otherwise environmentally-protected areas in which to rest, eat, or socialize in comfort, the same accommodation should be provided to employees who smoke. This would be a preferable arrangement for smokers rather than the current outdoor-smoking areas which are neither equipped to allow an employee to eat, rest, or socialize in comfort, nor do they provide protection from the
elements. An environmentally-protected area is needed for smokers since the weather most of the year is snowy, windy, rainy, or sub-zero in temperature. The Union maintains that its proposal is consistent with several decisions of the Panel which provide for outdoor smoking areas affording some protection from the elements. Construction of smoking areas does not condone smoking any more than the practice of having soft drinks and coffee available condones the use of caffeine products.
Although the Employer claims a policy of no smoking indoors currently exists, actually, it is permitted within some of its buildings; thus, the Union's proposal would merely continue this practice. Additionally, management's claim that a ban on indoor smoking furthers its mission is misleading since it tends to create a notion that the Employer has a health care mission which, in fact, it does not.
In regard to breaks, the Union contends that having unrestricted smoke breaks is consistent with the practice that has been in effect since 1985. Since there is no demonstrated need to change it, the practice should be retained.
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, the Union's proposal to allow smoking in all facilities would not adequately protect nonsmokers from the hazards associated with second-hand tobacco smoke. Rather, indoor smoking areas would create a health risk for nonsmokers since there is no evidence that the buildings would have ventilation systems that exhaust directly to the outside. Furthermore, adequately ventilating an indoor smoking area in each of the approximately 14 facilities where bargaining-unit employees are stationed would tend to be a rather costly venture. The Employer's proposal for a total prohibition of smoking in buildings, on the other hand, ensures that employees are more likely to have a healthful work environment free from the contamination of tobacco smoke. The smoking cessation clinics offered to employees at no cost should facilitate employee adjustment to a ban on indoor smoking. We are persuaded, however, that there should be some accommodation for those who choose to continue to smoke. Accordingly, the Employer should designate outdoor smoking areas which (1) are reasonably accessible to employees, and (2) provide a reasonable amount of protection from the elements. In our view, any inconvenience to employees caused by
requiring them to go to Employer-designated outdoor areas to smoke is outweighed by the health benefits to nonsmokers.
As to the question of breaks for smokers, we shall order the parties to adopt the Employer's proposal. We find that smokers could be adequately accommodated by limiting them to one 15-minute rest break per 4 hours of work which currently is authorized for all employees. Allowing smokers an unlimited number of breaks as the Union proposes could create a potential for abuse and contribute to lower productivity, since the Union offered no adequate restrictions on its proposal. However, we see no reason why smokers should not be permitted, for example, to take two shorter breaks rather than a single 15-minute break so long as
the shorter break periods do not exceed 15 minutes during each 4 hours of work. Doing so should help accommodate the needs of smokers who may find it necessary to have a break from work more frequently due to their smoking habit.
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 the 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 designated-outdoor smoking areas to be selected by the Employer which (1) are reasonably accessible to employees, and (2) provide a reasonable amount of protection from the elements.
By direction of the Panel.
Linda A. Lafferty
November 1, 1991