In the Matter of
DEPARTMENT OF THE AIR FORCE )
UNITED STATES AIR FORCE ACADEMY )
USAF ACADEMY, COLORADO )
and ) Case Nos. 91 FSIP 275
) 92 FSIP 80
LOCAL 1867, AMERICAN FEDERATION )
OF GOVERNMENT EMPLOYEES, )
Local 1867, American Federation of Government Employees, AFL-CIO (Union)1/ filed separate requests for assistance with the Federal Service Impasses Panel (Panel) to consider two different impasses between the Union and the Department of the Air Force, United States Air Force Academy, Colorado (Academy or Employer).
The Panel determined that the dispute arising from bargaining over Union mid-term proposals for alternative work schedules 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. As for the dispute arising from impact-and implementation bargaining over the Employer's decision to ban smoking at the Academy's Visitor Center, the Panel determined that it should be resolved on the basis of the parties' responses to an Order to Show Cause why the Panel should not mandate the following provision:
The Employer shall designate an outdoor smoking area at the Visitor's Center which (a) is reasonably accessible to employees and (b) provides a measure of protection from the el elements:
The Union's request in Case No. 91 FSIP 275 was originally filed under the Federal Employees Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. §§ 6120, et seq.(Act). The Panel determined that the statutory criteria for proceeding under the Act had not been met and that it would instead assert jurisdiction under section 7119 of the Federal Service Labor-Management Relations Statute (Statute). Likewise, jurisdiction in Case No. 92 FSIP 80 is asserted under section 7119 of the Statute.
Submissions were made pursuant to these procedures.2/ The Panel has consolidated the cases and has considered the entire record.
The Employer's mission is to educate cadets to prepare them for leadership positions in the United States Air Force. It is also the second most popular tourist attraction in Colorado, and its Visitor Center greets visitors to the Academy. The Union represents two bargaining units. One consists of approximately 1,300 employees who work in a variety of administrative and technical positions such as food and facility maintenance worker, secretary, clerk, and
grounds keeper. The second unit consists of 600 to 800 nonappropriated-fund employees who work in similar positions at the
automotive shop, the bowling alley, the stables, and the military
clubs and snack bars. The issue over establishment of alternative work schedules affects approximately 95 skilled-trades employees and heavy-equipment operators. The smoking ban issue affects approximately 17 bargaining-unit employees who work at the Visitor Center, 6 of whom are smokers, and a few nonbargaining-unit employees.
ISSUES AT IMPASSE
The parties are at impasse over (1) the establishment of 4-10
alternative work schedules for a l-year trial period for certain blue-collar employees and (2) the designated smoking areas for Visitor Center employees.
I. ALTERNATIVE WORK SCHEDULES
a. The Union's Position
The Union proposes a 4-day, 10-hour workweek for bargaining unit employees, for a l-year trial period. Each work unit would be broken down so that some employees would work from Monday through Thursday; the others from Tuesday through Friday.
A l-year trial period would give the Employer an adequate
opportunity to gather statistical data that show whether the 4-10
schedules contribute or are detrimental to accomplishment of the
Employer's mission. An alternative work schedule for Civil Engineering on this scale has never been tested before. The affected employees are heavily in support of such a schedule change.
2/ The Employer's rebuttal statement in Case No. 91 FSIP 275 (alternative work schedules) was not submitted within the time limitations specified by the Panel; it was not considered by the Panel.
The Union characterizes the Employer's objections to its proposal as frivolous, pretextual, and speculative. As to weeks with holidays, no hardship has resulted in the past when a holiday shortened the workweek. Emergency staffing needs could be met by existing military or civilian standby employees or by overtime if needed. Emergency snow removal needs could be handled under an existing heavy equipment snow removal plan which uses mostly military personnel and covers three shifts a day. Short-term absences of a supervisor could be handled, as at present, by placing a senior employee in temporary supervisory status. Access to all areas at the Academy is assured by the availability of keys.
The Employer's safety argument is inconsistent with its present practice in cases of late-night emergencies, when employees are not permitted to make up lost sleep before reporting for their regular shifts. The Employer's overtime cost estimates are speculative because they are based on emergency experience of previous years.
b. The Employer's Position
The Employer opposes any changes in the status quo, 7:30 a.m. to 4 p.m. Civil Engineering, the organizational subdivision for which the Union proposes the 4-10 schedule, is a service organization that must be responsive to its customers at all times during the workweek. Its major customers have normal work hours of 7:30 a.m. to 4:30 p.m., 5 days a week.
The Union's proposed 4-day, 10-hour schedule would have a
particularly negative impact in the following situations: (1) during weeks in which holidays fall on Monday or Friday and employees would take their regular third day off on Tuesday or Thursday; (2) when snow removal needs arise on Mondays and Fridays; (3) when a shop has only one supervisor who is on an 8-hour schedule; and (4) when employees would not have access to areas that are open only 8 hours. A 10-hour work day would increase worker fatigue and, consequently, the chance for accidents. Finally, it estimates that the shortage of employees on Mondays and Fridays would result in additional overtime costs of $68,187.
After considering the evidence and the arguments presented, we shall order the Union to withdraw its proposal. In our view, the Employer raises significant concerns about the use of a 4-10 schedule where, as here, each shop within the sections of the CE division to which the Union's proposal applies is small and the employees are variously skilled. From the facts presented in the record, we cannot infer that there is a great deal of duplication or overlapping of skills among the affected employees, especially those in the mechanical and housing maintenance shops. Such a situation does not leave management much leeway for ensuring that
each necessary function will be adequately staffed on Mondays and
Fridays, or, in weeks containing holidays, on the employees' substitute days off (if any). Under the circumstances presented here a change from a standard workweek to a 4-10 schedule is a large step; one that the Union has not justified
II. SMOKING POLICY
a. The Employer's Position
The Employer proposes to designate the outside break area
directly in front of the Visitor Center snack bar as the smoking area for Visitor Center employees. The Employer's response to the Panel's Order to Show Cause takes issue with the provision the Panel submitted to the parties for their comments only to the extent that, while the Panel's provision described an outdoor smoking area with certain requirements, the Employer proposes a specific area which exists and meets the Panel's requirements. Thus, it will not be necessary to construct a new structure that meets the requirement of providing "a measure of protection from the elements." Moreover, its designated area has "excellent solar orientation"3/
The Academy has adopted strict architectural guidelines to maintain the beauty of its campus by keeping all structures mutually compatible. Conformance with those guidelines would require an estimated $25,000 to construct a new shelter of adequate size.
b. The Union's Position
The Union agrees that the entire Visitor Center should be a nonsmoking facility, but seeks an exception during periods "when conditions outside are such that bargaining-unit employees are at unhealthy discomfort". That is, during snow storms, rainy or windy conditions, and severe cold conditions. During such periods, the Union proposes six tables in the snack bar at which smoking is currently permitted should remain as alternative smoking areas. The adverse weather exception would be instituted for a test period of 1 year, and would become permanent if neither party requests further negotiation during the 1-year period.
3/ The Employer's submission included a postcard depicting the Visitor Center. Superimposed on the picture is an arrow pointing to the proposed smoking area, which is an area of undeterminable size
but unquestionably large enough to accommodate the needs of fewer than 10 smokers. It is covered by an overhang from that part of the main building where the snack bar is located, and appears to be well situated to ameliorate the severe cold weather. In its statement of position, the Union refers to an area of the snack bar containing three (not six) "small tables off to a corner," an area that is "completely out of the way of the kitchen and all entrances for tourists." The Union cites a survey which shows, it claims, that 96 percent of the employees do not mind the smoking that now occurs in the three-table area.4/ The Employer permits indoor smoking in some other buildings at the Academy. "It is unhealthy to be out in sub-zero weather and this is the intent of the Agency, to
impose a nonsmoking society on all with no regard to freedom of choice or care toward the disparity of smokers."
Having considered the arguments presented, we conclude that the Union has not shown cause why a complete ban on indoor smoking in the Visitor Center should not be implemented. However, we also conclude that the Employer has shown cause why the provision submitted by the Panel in its Order to Show Cause should not be adopted.
The Union's proposal fails to recognize the hazardous effects of even small amounts of sidestream smoke on building occupants,
including employees and visitors, who might well include small children and pregnant women. The very survey cited by the Union
indicates that 10 out of 24 respondents believed that smoking should not be permitted in the Visitor Center, and 8 respondents said they were "offended by second-hand smoke." Although the Union's proposal does seem to represent a good-faith effort to accommodate the interests of both smokers and nonsmokers, the smoking it would permit, in a nonsegregated public area, exposes those present to a more than remote health hazard. 5/ Moreover, the snack bar is open to the building's central ventilating system so that smoke originating there is spread throughout. The Union's proposal might also give rise to problems of interpretation, since, especially in the presence of an option of a covered break area offering some measure of protection, the phrases, "rainy or windy conditions" and "severe cold conditions" lend themselves to differences of opinion.
4/ The percentage figure is inaccurate, however. The survey question was whether smoking in that area annoyed the respondent.
Twenty-one answered "no" and 3 answered "yes."
5/ The Health Consequences of Involuntary Smoke. A Report of the Surgeon General. DHHS Pub. No. (CDC) 87-8398. U.S. Department of Health and Human Services, Center for Health Promotion and Education, Office of Smoking and Health, 1986; and "Indoor Facts No. 5, Environmental Tobacco Smoke," U.S. Environmental Protection Agency, Office of Air and Radiation, June 1989.
The Employer's proposal has some advantages over a provision for an outdoor area not yet identified, given the Employer's demonstration of the suitability of the particular area it proposes be designated. The covered outdoor break area is readily accessible to Visitor Center employees, is adequate as a smoking area with the addition of aluminum urns for ashtrays and disposal (as recommended by the Employer's Civil Engineer), and would provide a measure of protection from the elements. That the degree of protection it affords does not ensure that smokers will be comfortable while experiencing "sub-zero weather" does not warrant permitting them to jeopardize the health of others by smoking inside or requiring-the Employer to go to the considerable expense of providing a more completely protected smoking area. In this connection we find persuasive the Employer's representation that a suitable, architecturally compatible structure would be costly. Whether or not the estimated $25,000 would actually be required, that estimate seems plausible enough to justify the conclusion that the cost would be substantial.
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 disputes during the course of proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a) (2), the Federal Service Impasses Panel under section 2471.11(a) of its regulations hereby orders the following:
I. Alternative Work Schedules
The Union shall withdraw its proposal.
II. Smoking Policy
The parties shall adopt the Employer's proposal.
By direction of the Panel.
August 11, 1992
Linda A. Lafferty