In the matter of )
Department of the Navy )
Naval Engineering Center )
Lakehurst, New Jersey )
and ) Case No. 91 FSIP 70
Local 284, National Federation )
of Federal Employees )
Local 284, 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 Navy, Naval Engineering Center, Lakehurst, New Jersey (Employer).
The Panel determined that the parties' dispute concerning
child care and smoking in the workplace 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's mission is to produce and test support equipment for naval aviation. The Union represents a bargaining unit consisting of approximately 1,177 Wage Grade and General Schedule employees who hold positions such as secretary, payroll clerk, computer operator, engineering technician, welder, electrician, painter, and boiler operator. The total civilian population at the Lakehurst facility is approximately 2,500; 416 military personnel are assigned to the base. The parties' labor agreement, which was to expire in June 1990, has been extended
pending implementation of a successor. The dispute herein arose during negotiations over a new term agreement.
With respect to the child care center on the base, two sets of
waiting lists for enrollment are maintained, one for military dependents, the other for those of civilians. The lists are further subdivided by the age of the children; that is, there is a separate list for infants ages 3 to 13 months, pre-toddlers 1 to 2 years, 2-year-olds, 3-year-olds, 4-year-olds, and 5-year-olds. Military personnel who are on the lists are offered first slots at the child care center; if there are any openings remaining, they are offered to civilians. The practice has been that once a dependent is enrolled, either civilian or military, that child is entitled to a slot at the child care center for as long as needed.
ISSUES AT IMPASSE
The parties disagree over (1) whether dependents of civilian
employees should be afforded greater enrollment at the base's child care center, and (2) the extent to which smoking is to be permitted indoors.
POSITIONS OF THE PARTIES
1. Child Care
a. The Employer's Position
The Employer proposes the following:
The Employer agrees to continue the existing child care programs, and continue to pursue all available avenues within the regulatory guidelines to improve child care opportunities for its employees. The Employer agrees to serve as a referral service, regarding daycare opportunities. Employees seeking child care will be provided the names of child-care providers when such are available. Cost of child care remains the responsibility of the employee/parent. In addition, a Union representative is encouraged to attend the quarterly Child Development Center Advisory Council meeting. This council provides recommendations to the Commanding Officer for improving services and operations of the child development programs at the NAVAIRENGCEN.
In support of its position, the Employer maintains that Navy
regulations (OPNAVINST 1700.9B and BUPERINST 1710.11A) require that
military personnel be given priority over civilian employees in child care enrollment. The child care center on the base currently has an enrollment of 54 -- 26 children of military personnel and 28 children of civilians. Despite the regulation, the enrollment reveals that civilian employees are being accommodated adequately; in this regard, the ratio shows that the enrollment for civilian dependents is 64 percent at the child care center. As of the time the parties' written statements of position were submitted to the Panel, there were 12 children of military members and 13 children
of civilians on the waiting lists for slots in the infant to 2-year-old range at the center. In the Family Home Care Program, where dependent care is provided in private homes on or near the base, currently, 24 children of military and 5 children of civilians are enrolled; there is no waiting list. Comparability data show that within a 5-mile radius of the base, there are nine private child care centers where employees, who cannot be accommodated at the base's child care center, may choose to enroll their children; within a 12- to 65-mile radius of the base from which employees commute, there are an additional 25 child care centers available to civilian employees. Thus, the data demonstrate that there are many private facilities in the surrounding towns and communities from which civilians may choose if they are unable to enroll their children at the base's child care center. Furthermore, comparability data from three other military installations in New Jersey show that two also give priority in enrollment to military personnel, and one, Fort Monmouth, only accepts military dependents at its child care center.
b. The Union's Position
The Union proposes the following:
Fifty percent of all slots shall be set aside for the children of bargaining-unit employees and shall be offered at the same price as charged to military personnel. Thereafter, vacancies shall be filled on a first-come-first-served basis. When all slots are filled, employees seeking child care will be provided the names of child-care providers when such are available. Cost of child care remains the responsibility of the employee/parent.
The Union maintains that civilians should have greater access to the child care center on the base since the cost of private care in the area is extremely expensive, according to an Employer survey. Depending upon an employee's income, the cost of child care at the base could be less than half of private care. For example, based upon the Employer's own statistics, a civilian employee or member of the military who earns $27,000 or less per year is charged $41 per week for one child enrolled at the base's child care center; however, at the private child care centers near the base which the Employer surveyed, those whose fees are set weekly, charge at a minimum between $85 and $100 per week. Because of the proximity of the base's child care facility to employee duty stations, giving employees the right to enroll their children there would be a great convenience. It also would enable parents to better monitor the quality of the services Provided.
We find that the Employer's proposal provides an equitable basis upon which to resolve the impasse. Although the Union maintains that bargaining-unit employees should be guaranteed a certain percentage of slots at the base's child care center, that approach may not be necessary since the record reveals that civilians are being accommodated adequately regardless of the Navy regulation which requires military personnel to have priority in enrollment at the center. Thus, there does not appear to be a demonstrated need to change the current practice of allocating child care enrollment. Moreover, the Union's proposal to reserve 50 percent of the slots for bargaining-unit members seems to apportion an excessively large number of spaces for them given that the Union represents only 1,177 of the 2,500 civilians in the workforce. Noting that the remaining slots would be reserved for dependents of military personnel, the Union's proposal would exclude unfairly a large number of civilians who are not represented by the Union from access to child care enrollment at the base's facility. Furthermore, we find no evidence in the record that civilian dependents have been on waiting lists at the child care center for extended periods of time. Finally we find that since military personnel typically are more transient than civilian employees,
it may be more equitable to give them priority in child care placement at the center. In this regard, military members may not have the extended family support available to them in the area which civilians, who are a less mobile workforce, are likely to have.
2. Smoking Policy
a. The Employer's Position
The Employer proposes that the use of tobacco products within the Naval Air Engineering Center indoor work spaces be prohibited; smoking would be permitted outdoors, and at designated areas in the Consolidated Mess and the bowling alley.
The Employer contends that its proposal would retain the ban on smoking at indoor workstations which has been in effect since 1987, as was the preference of the majority of employees surveyed then. It is likely that since 1987, the number of smokers has decreased which means that there are now even fewer to accommodate. Implementing the proposal would establish a uniform basewide policy since the same one is in effect for all other employees, including those represented by two other unions on the base.
Furthermore, since most of the 113 buildings where employees work have central air conditioning systems which merely recirculate the air, it is important to eliminate smoking indoors to avoid subjecting nonsmokers to the hazards associated with environmental tobacco smoke. Providing indoor designated-smoking areas to the extent proposed by the Union would require costly renovations of the ventilation systems in each building in order to ensure that smoke is vented to the outside. Estimated conservatively at a cost of $25,000 for each building, reconstruction and renovation would require a considerable expenditure of funds. Also, operational and utility costs likely would increase as the ventilation systems would have to run continuously in order to remove smoke from the indoor environment.
Smokers would be adequately accommodated as two indoor-designated areas for smoking would be retained to accommodate them. Since these indoor designated-smoking areas are not places where employees are required to go, but do so voluntarily, nonsmokers may elect to avoid going there. At the time the ban was implemented in 1987, smokers were given the opportunity to attend smoking cessation classes; thus, the Employer already has attempted to help them make the transition to a smoke-free workplace. Smoking outdoors during inclement weather is the decision of the smoker; since it takes only a short period to smoke a single cigarette, the amount of time smokers are exposed to the elements should be brief. Moreover, it is not unusual for smokers to be required to smoke outdoors.
b. The Union's Position
The Union proposes to establish a reasonable number of smoking break areas (with exhaust fans) to enable employees who smoke to do so conveniently and without affecting productivity. It does not seek a designated indoor-smoking area in each of the 113 buildings, but rather, "strategically located rooms" for smoking. This policy would comply with the Governmentwide regulations on smoking established by the General Services Administration (GSA).
The Union argues that its plan would protect the rights of smokers as well as nonsmokers. Furthermore, it contends- that Department of the Navy regulations do not require a smoke-free work environment, nor do GSA regulations; rather, the latter attempt to balance the interests of smokers and nonsmokers alike. A survey conducted among employees in 1987, concerning smoking indicates that there is a significant number of employees who smoke (approximately 26 percent) and, therefore, should be accommodated. The renovation of ventilation systems to meet the safety standards established by the American Society of Heating, Refrigeration,
and Air Conditioning Engineers has been estimated to cost between $4,000 and $6,000 each, a much lower and more realistic figure than that provided by the Employer. Finally, the Union contends that the current policy of forcing smokers to go outside to smoke may jeopardize their health during inclement weather.
Having considered the parties' evidence and arguments, we conclude that the dispute over smoking should be resolved on the basis of a modified version of the Employer's proposal. In our view, the Union's proposal, which would require renovation to the ventilation systems of every building where smoking would be permitted, is too costly an alternative, even assuming that the Union's lower estimated figure for the renovations rather than that of the Employer is correct. For example, if only 50 of the 113 buildings where employees are stationed were renovated to allow smoke to vent to the outside, at the estimated cost between $4,000 and $6,000 per building, it still could require a total expenditure of between $200,000 and $300,000. We find that under the circumstances of this case the benefit to employees does not justify the cost to the Government; accordingly, the parties should adopt the more economical alternative and ban smoking indoors with the exception of the bowling alley and the Consolidated Mess.
The Employer's proposal, however, does not go far enough to
accommodate the needs of smokers. In this regard, while it would allow smoking anywhere outdoors, it offers no protection for smokers against the local weather conditions. Therefore, compromise wording should be adopted which would require the Employer to select a sufficient number of designated outdoor-smoking areas which (a) are reasonably accessible to employees and (b) provide a reasonable amount of protection from the elements. Allowing the Employer to select the outdoor-smoking areas where smokers shall be provided a reasonable amount of protection from the elements should reduce disputes over the location. We are not requiring, however, the Employer to expend funds to construct shelters; rather, the Employer could select existing areas, which might include, a covered walkway, entrance, or picnic area; gazebo; or an area covered by a roof overhang. Furthermore, the Employer should provide employees who smoke with an opportunity to attend, at no cost to the employee, a smoking cessation program. Any grant of administrative time for this purpose, however, shall be subject to operational needs. In our view, offering another opportunity for smokers to take a smoking cessation course may be prudent since the last opportunity provided by the Employer was over 4 years ago. Given the extremely addicting nature of nicotine, a refresher course may be in order for those who failed to break the habit in 1987; also, new hires since then who have not had an opportunity to take a smoking cessation course may benefit from one now.
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:
1. Child Care
The parties shall adopt the Employer's proposal.
2. Smoking Policy
The parties shall adopt the Employer's proposal as modified by the following:
The Employer shall select a sufficient number of designated outdoor-smoking areas which (a) are reasonably accessible to employees and (b) provide a reasonable amount of protection from the elements. Employees who smoke shall be afforded the opportunity to attend, at no cost to the employee, a smoking cessation program; any grant of administrative leave for this purpose shall be subject to operational needs.
By direction of the Panel.
Linda A. Lafferty
December 6, 1991