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U.S. Federal Labor Relations Authority

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United States of America


In the Matter of )






and )Case Nos. 91 FSIP 57

) 91 FSIP 59





and )






In Case No. 91 FSIP 57, Local 3, International Federation of Professional and Technical Engineers, AFL-CIO (IFPTE or Union) and the Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania (Employer), and in- Case No. 91 FSIP 59, Local 2, Planners, Estimators, Progressmen, and Schedulers, AFL-CIO

(PEPS or Union) and the Employer, filed joint requests for assistance with the Federal Service Impasses Panel (Panel) to consider negotiation impasses under section 7119 of the Federal Service Labor-Management Relations Statute (Statute).

After investigation of the requests for assistance, which concern the Employer's smoking policy, the Panel determined that the cases should be consolidated and the impasses resolved through the issuance to all parties of an Order to Show Cause as to why the Panel should not order the adoption of the Employer's proposal, which is substantially similar to the provision the Panel imposed in Department of Transportation, U.S. Coast Guard Yard. Curtis Bay, Maryland and Local 2317. American Federation-of Government Employees. AFL-CIO, Case No. 90 FSIP 180 (October 24, 1990), Panel Release No. 300 (Curtis Bay).1/ After considering the parties' responses to its Order to Show Cause, the Panel would take whatever action it deemed appropriate to resolve the impasses. The parties, however, did not submit responses pursuant to these procedures.


The Employer builds, repairs, and overhauls naval vessels. IFPTE represents approximately 1,400 General Schedule (GS) employees in such jobs as engineer, engineering specialist, architect, mathematician, quality assurance specialist, and production controller. They are covered under a labor agreement which is in effect until March 1992, having been extended on an annual basis since its original term expired in March 1986. PEPS represents approximately 279 GS and Wage Grade (WG) employees. WG

employees hold positions as planners and estimators, progressmen, and schedulers; GS employees work as, among others, production controllers and equipment specialists. The labor agreement under which they are covered is due to expire on August 21, 1993.

The dispute arose during joint negotiations over the Employer's proposed policy to ban indoor smoking in Building 4, where the majority of employees represented by the Unions are stationed. Currently, these employees are permitted to smoke in their work areas.


Whether the Panel should order the parties to adopt the Employer's proposed smoking policy which is substantially similar to the provision it imposed in Curtis Bay, supra, which also concerned employees who work in a shipyard environment.

1/ In Curtis Bay, which concerned a smoking policy for all facilities or spaces controlled by an employer who, among other things, built, repaired, and overhauled ships for the Coast Guard, the Panel concluded that a total prohibition on indoor smoking would ensure that employees are more likely to have a healthful work environment free from the contamination of second-hand tobacco smoke. It ordered the parties to adopt the employer's no-indoor-smoking proposal modified to provide for employer-designated outdoor smoking areas which (1) are reasonably accessible to employees and (2) provide a modicum of protection from the elements.


1. The Employer's Position

In essence, under the Employer' 5 proposal, (1) smoking would be permitted only in (a) the four outside alcoves on the north and south sides of the building, and (b) the two courtyards on the first floor, one each on the north and south sides of the building; (2) supervisors would allow employees to take smoke breaks provided that "their frequency and duration is not disruptive of the work environment or hinder the operation;" and (3) supervisors would provide information on smoking cessation classes which, if there is a showing of interest, would be held during brown bag lunches.

The Employer argues that concern for employees' health, a factor which the Panel has considered in resolving similar disputes 3/, and complaints from employees over tobacco smoke in work areas prompted its proposed policy banning smoking inside the building. Furthermore, the building has a closed ventilation system and, therefore, would not support indoor smoking without imperilling the health of employees who work there. Although the Employer has undertaken an upgrading of the system, its purpose is to correct an air distribution and recirculation problem, and not to provide for ventilation to the outside.

2/ Although the parties did not respond to the-Panel's Order to Show Cause, their positions on the issue are taken from information proffered during the Panel's initial investigation into the joint requests for assistance.

3/ Department of Veterans Affairs. Veterans Health Services and Research Administration. Washington. D.C. and National Veterans

Administration Council. American Federation of Government Employees, AFL-CIO, Case No. 89 FSIP 198 (April 27, 1990), Panel Release No. 294; Department of the Air Force. MacDill Air Force Base, Florida and Local 153 National Federation of Federal Employees, Case No. 90 FSIP 58 (April 27, 1990), Panel Release No. 294; and Department of the Navy Naval Surface Warfare Center. White Oak. Silver Spring, Maryland and Local 1. American Federation of Government Employees, AFL-CIO, Case No. 90 FSIP 126 (August 31, 1990), Panel Release No. 298.

2. The IFPTE's Position

This Union proposes that the Employer (1) permit smoking in work areas "where conditions exist for an accom[m]odation" and, where such accommodation is not feasible, or smokers are amenable to smoking elsewhere, construct conveniently located, temperature-controlled facilities for smokers' unrestricted use; (2) assess the indoor air quality and "airborne contaminants" in all Shipyard facilities: and (3) repair or improve the ventilation system in the building. The Employer could construct smoking areas by building two 6- by 20-feet glass enclosures at opposite ends of a wide hallway on the second floor of the building at a relatively low cost -- $5,000 to $10,000 per enclosure. It contends that a public works engineer has advised the parties that the construction of such enclosures is feasible. Relegating smokers to the outdoors or designated restrooms is not the solution for this problem. A new air quality study is called for because the Employer has had work

performed on the ventilation system since the last one; moreover, such a study is necessary to determine if the building meets established air quality standards.

3. The PEPS' Position

PEPS proposes that the Employer provide an indoor area with a

dedicated exhaust to be used by smokers in the building. It argues that the building is "self-contained" and does not meet Occupational Safety and Health Act air ventilation standards; therefore, indoor smoking could not be accommodated without jeopardizing the health of nonsmokers. Nevertheless, the two four-walled courtyards could be structurally modified to provide employees with indoor areas to smoke. Such modifications would simply require the construction of an overhead structure and installation of an exhaust system at a modest cost to the Employer.


No cause having been shown why the Employer's proposal which is substantially similar to the provision we adopted in Curtis Bay should not be ordered to resolve this issue, we hereby order its adoption. We note that the alcoves and courtyards would be suitable accommodations for smokers because they provide a "modicum of protection from the elements."4/ The Unions' proposed expenditures for building or courtyard modifications so as to provide smokers with total protection from the elements, therefore, are unnecessary. In this regard,

4/ See Curtis Bay, supra.

the Panel has never determined that outdoor smoking facilities must protect smokers from all types of weather.5/ The designation of the alcoves and courtyards as smoking areas, as well as the relatively liberal smoke breaks, in our view, should adequately accommodate those employees who choose to continue to smoke. Finally, the availability of smoking cessation classes should facilitate the adjustment of those employees who smoke to a smoke-free workplace.


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.

By direction of the Panel.

Linda A. Lafferty

Executive Director

July 23, 1991

Washington, D.C.

5/ See Department of the Air Force. MacDill Air Force Base. MacDill AFB. Florida and local 153.

National Federation of Federal Employees, Case No. 90 FSIP 217 (December 20, 1990),

Panel Release No. 303 (stating that "[i]t has never been the Panel's intent in any of its

decisions concerning outside designated areas to require the construction or modification of a

structure that would provide complete

Protection from the elements." [footnote omitted]).