In the Matter of )
DEPARTMENT OF THE ARMY )
U.S. ARMY ENGINEER CENTER )
FORT LEONARD WOOD, MISS0URI )
and ) Case No. 91 FSIP 156
LOCAL 738, NATIONAL )
FEDERATION OF FEDERAL )
Local 738, 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 Army, U.S. Army Engineer Center, Fort LeonardWood, Missouri (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 the U.S. Army's main combat engineering training facility. The Union represents approximately 1,500 professional and nonprofessional employees in a full range of trades and crafts, as well as such jobs as clerk, computer operator, engineer, medical and dental technician, nurse, and doctor. The parties' collective bargaining agreement expired on March 29, 1991. The current dispute arose as the result of negotiations concerning the Employer's proposed policy that smoking be prohibited in two of its dental clinics.*/ The policy would affect about 40 bargaining-unit employees who work mainly as clerks and dental technicians at the clinics.
ISSUE AT IMPASSE
While the parties agree that there should be no smoking inside the clinics, the issue at impasse concerns the type of outdoor accommodations to be provided to smokers after the Employer's Policy is implemented.
1. The Union's Position
The Union proposes the following wording:
Management will submit a work order for the construction of a shelter outside Harper Dental Clinic and Roll Dental Clinic. To protect the smoking employees from inclement weather, management [will] provide a portable or temporary shelter as in a portable building or trailer, or other such shelter, which is already available, and therefore at no cost to the budget, for smokers until construction on the permanent shelters can be completed.
The adoption of its proposal would protect employees who smoke
outdoors from the often severe weather conditions indigenous to Missouri until funds are available for the construction of permanent smoking shelters. In this regard, budgetary constraints make it unlikely that permanent shelters would be funded "for at least five years, if ever." The proposal also is consistent with past Panel decisions requiring that outside smoking areas be reasonably accessible and protected from the elements. The Employer, on the other hand, would provide smokers only a picnic table "with no protection from temperatures, precipitation, wind,
and their extremes."
Indoor smoking has already been prohibited at a third clinic, located within the base hospital, as the result of a previous Panel Decision and Order in Department of the Army, U.S. Army Medical Department Activity, Fort Leonard Wood. Missouri and Local 738. National Federation of Federal Employees, Case No. 89 FSIP 182 (November 1, 1989), Panel Release No. 287. There the Panel adopted the Employer's proposal, which provided, among other things, outdoor sheltered smoking areas.
In addition to endangering employees' health and exposing them "to severe weather accidents," its position violates Department of Defense directives on smoking that "forbids unduly inconveniencing smokers," and is inconsistent with various provisions in the parties' collective bargaining agreement.
2. The Employer's Position
In essence, the Employer proposes that smoking be limited to one designated outdoor area at each dental clinic, currently consisting of a picnic table, until such time as the Directorate of Engineering and Housing (DEH) acquires the funds to construct permanent smoking shelters, in accordance with the work orders already submitted by the Employer. Although smokers may be inconvenienced under its proposal during periods of inclement weather, this is mitigated by the fact that breaks may be divided into increments and taken at various times throughout the day. Thus, "if it is raining or otherwise inclement," smokers "can wait for the weather to clear, if they choose." Employees may also travel a short distance to smoke in their vehicles. Moreover, because military employees, visitors, and patients at the two clinics have been required to smoke outdoors in all types of weather for at least a year, "it is fitting and proper that their civilian colleagues be required to do the same." If an employee is unduly inconvenienced by the lack of outside smoking shelters, he or she also may request a voluntary transfer to the hospital dental
clinic where outdoor sheltered smoking areas are available. Finally, the temporary structures proposed by the Union would not meet Department of the Army fire safety standards when used as smoking shelters, and would "diminish the tasteful appearance of the post."
Having considered the evidence and arguments in this case, we shall order the parties to adopt the Union's proposal to settle their dispute. In our view, the proposal reasonably would provide smokers with a measure of protection from the elements at a minimal cost to the Employer. In this regard, the changeable weather conditions in the area and the uncertainty in the timetable for the construction of permanent smoking shelters make such a result preferable. Moreover, given the fact that employees at the hospital dental clinic have access to sheltered smoking areas adoption of
the Union's proposal also would result in comparable treatment of
employees at all three of the Employer's clinics. As to cost, there is no evidence in the record to refute the Union's contention that portable or temporary shelters are already available at the
base. While erecting temporary shelters may be objectionable on aesthetic grounds, such considerations are outweighed by the benefits they should afford smokers. Finally, there is no evidence in the record that temporary shelters could not be made to meet applicable fire safety standards. In any event, we believe that the wording of the Union's proposal permits the Employer enough flexibility to protect smokers from inclement weather without violating such standards.
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 Linda section 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Union's proposal.
By direction of the Panel.
Linda A. Lafferty
July 19, 1991