United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENTS OF THE ARMY
AND AIR FORCE
ARMY AND AIR FORCE EXCHANGE SERVICE
TYNDALL AIR FORCE BASE EXCHANGE
TYNDALL AIR FORCE BASE, FLORIDA
LOCAL 3240, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO
Case No. 93 FSIP 64
DECISION AND ORDER
The Departments of the Army and Air Force, Army and Air Force Exchange Service, Tyndall Air Force Base Exchange, Tyndall Air Force Base, Florida (Employer or AAFES) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and Local 3240, American Federation of Government Employees, AFL-CIO (Union).
After investigation of the request for assistance, the Panel determined that the dispute, which concerns smoking policy, 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. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.
The Employer's mission is to provide merchandise and services to military personnel and their dependents, and, from its profits, provide funding for Morale, Welfare, and Recreation (MWR) programs. The Union represents approximately 116 nonappropriated-fund employees working at the Tyndall Air Force Base Exchange who are members of a worldwide consolidated bargaining unit. The parties are covered by a master collective-bargaining agreement which is due to expire in November 1993.
ISSUE AT IMPASSE
The parties disagree over whether indoor smoking should be prohibited at the installation's Main Exchange facility.
1. The Employer's Position
The Employer proposes the following wording:
Prohibit smoking in all Tyndall AFB Exchange facilities (and in the proximity of exits and entrances), except at the Burger King, where a designated smoking area would remain. Two designated smoking areas are available outside the Main Exchange affording some protection from the elements and easily accessible by employees.
Its proposal would require a "small number" of smokers to discontinue smoking in the employee breakrooms. This would be beneficial to smokers and nonsmokers because it would remove "a known carcinogen from the place where breaks -- lunch periods and rest periods -- are taken by all employees." Smokers would not, however, be required to abstain from smoking entirely. They would be permitted to do so in several areas which afford some protection from the elements "in a region of the country that experiences inarguably moderate weather conditions most of the time." Its proposal also is consistent with a recent Panel decision involving similar circumstances in Departments of the Army and Air Force, Army and Air Force Exchange Service, Utah Exchange, Hill Air Force Base, Utah and Local 1592, American Federation of Government Employees, AFL-CIO, Case No. 92 FSIP 26 (April 2, 1992), Panel Release No. 328 (Hill AFB). Moreover, while it is not proposing that it be required to offer smoking cessation classes at no cost to participants, as the Panel ordered in Hill AFB, this would be "a logical and desirable feature of any resolution order."
2. The Union's Position
The Union essentially proposes: (1) no implementation of the indoor smoking ban until "a Decision and Order of the Panel has been accomplished;" (2) continuation of the current policy permitting employees to smoke in an indoor breakroom "until such time as a polling and study can be conducted to determine the most appropriate arrangement for those employees adversely affected by the change;" and (3) "notwithstanding the above," a requirement that the Employer equip designated smoking areas "for smoking employees," which are segregated from nonsmokers, enclosed, and adequately ventilated. The Union also appears to be proposing that whatever the Employer does to provide an enclosed smoking area, it not be at the expense of adequate break and lunchroom facilities for smokers.
Its proposal is preferable because it would ensure "that employees who are affected by a longstanding practice . . . are adequately provided for." In this regard, although it "is understanding of the so-called medical evidence concerning the effects of 'second-hand' smoke," it is still the obligation of both parties "to provide for the needs of employees who smoke." AAFES continues to sell tobacco products and "provides arrangements" for its customers who smoke, so "it is not inappropriate to consider similar arrangements for employees who purchase and smoke tobacco products," or to poll employees to determine their desires concerning the arrangements which would best serve their needs. Moreover, if the number of employees who smoke is as small as management asserts, its proposal would "not pose unreasonable expense or exposure to nonsmokers." Finally, because the cases differ in many respects, the Panel should base its decision upon an "independent determination of the facts, proposals, and situation at Tyndall AFB, and not the Hill AFB case."
Having considered the evidence and arguments in this case, we conclude that a modified version of the Employer's proposal should serve as the basis for resolving the dispute. Preliminarily, the record reflects that indoor smoking has already been prohibited in the other smaller exchange facilities at the installation, so the parties' dispute concerns only whether the same policy should apply at the Main Exchange. In this regard, while we acknowledge that there are differences between the situations at the Tyndall and Hill Exchanges, the overwhelming scientific evidence concerning the adverse impact of exposure to second-hand smoke remains the same. Accordingly, a ban on indoor smoking is necessary to enhance the health of all individuals at the Main Exchange. Moreover, although neither party included smoking cessation classes as part of its proposal, we are persuaded that such classes would benefit smokers attempting to break the habit. At the very least, the record shows that neither party would oppose such a requirement. Finally, with respect to already existing outdoor smoking areas at the Main Exchange, since we are unable to confirm, from the written record, their adequacy or accessibility, we shall adopt a more broadly-worded provision requiring the Employer to designate an outdoor smoking area at the Main Exchange which (1) is reasonably accessible to employees, and (2) provides a measure of protection from the elements. Any disputes over the adequacy or accessibility of the designated area may be resolved through the parties' negotiated grievance procedure.
Pursuant to the authority vested in it by section 7119 of the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute 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 § 2471.11(a) of its regulations hereby orders the adoption of the following wording:
1. All smoking inside the Main Exchange at Tyndall AFB shall be prohibited.
2. Smoking cessation classes shall be provided once at no cost for interested employees, who shall be excused from work on official time, workload permitting, to attend classes that are scheduled during their work time.
3. The Employer shall designate an outdoor smoking area at the Main Exchange which (a) is reasonably accessible to employees and (b) provides a measure of protection from the elements.
By direction of the Panel.
Linda A. Lafferty
May 25, 1993