NATIONAL LABOR RELATIONS BOARD WASHINGTON, D.C. and NATIONAL LABOR RELATIONS BOARD PROFESSIONAL ASSOCIATION and WASHINGTON LOCAL, NATIONAL LABOR RELATIONS BOARD UNION

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

NATIONAL LABOR RELATIONS BOARD

WASHINGTON, D.C.

and

NATIONAL LABOR RELATIONS BOARD

PROFESSIONAL ASSOCIATION and

WASHINGTON LOCAL, NATIONAL LABOR

RELATIONS BOARD UNION

Case No. 93 FSIP 173

 

DECISION AND ORDER

    The National Labor Relations Board Professional Association (NLRBPA) 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 the National Labor Relations Board, Washington, D.C. (Employer or NLRB). The Washington Local, National Labor Relations Board Union (NLRBU) subsequently joined the NLRBPA's request for assistance.

    After investigation of the request, the Panel determined that the impasse, which concerns the smoking policy at the Employer's new headquarters, should be resolved on the basis of a single written submission from each party, with the Panel to issue a Decision and Order to resolve the impasse. Written submissions were made pursuant to this procedure(1) and the Panel has now considered the entire record.

BACKGROUND

    The Employer's mission is to administer the National Labor Relations Act. The NLRBPA represents 2 separate bargaining units of approximately 140 attorneys who work at the Employer's headquarters in Washington, D.C. The Washington Local, NLRBU, represents 2 separate bargaining units of approximately 100 clerical employees who also work at the headquarters office. The NLRBPA has separate collective-bargaining agreements (CBA) with the Employer for each of the units it represents which run concurrently, and expired on September 26, 1993. Similarly, the Washington Local, NLRBU, has separate agreements with the Employer for each of the units that it represents which also run concurrently; both expired in 1985, but remain in effect by mutual agreement of the parties.

    The parties reached impasse following negotiations over the smoking policy at the Employer's new headquarters building. During negotiations they agreed to an interim policy permitting smoking in two indoor lounges which will remain in effect only until the Panel resolves the instant impasse.

ISSUE AT IMPASSE

    The parties' disagreement concerns whether the Employer should have a smoke-free workplace at the new headquarters building.

POSITIONS OF THE PARTIES

1. The Unions' Position

    The Unions propose that smoking be allowed only in outdoor areas and the garage-level smoking area provided by the building's management. It also proposes that the Employer provide "no-cost smok[ing] cessation classes during working hours for those smokers who wish to stop their habit."(2) The need for a smoke-free workplace is supported by an overwhelming body of scientific evidence conclusively establishing the dangers to health caused by the passive inhalation of second-hand smoke. The Employer's contention that employee lounges are equipped with ventilation and exhaust systems that would extract smoke so rapidly that the health of nonsmokers would be unaffected is "patently false." In this regard, there have been "numerous complaints" from employees on the ninth floor about the smoke in the lounge.

    Evidence that the Unions' position is broadly supported by their members comes in the form of surveys conducted prior to the phased-in relocation to the new building, and a petition drive that occurred after the Employer announced its intention to designate the ninth floor lounge as a smoking area. In addition, besides the NLRB, the building is currently occupied by three other tenants, "all of which prohibit smoking in their workplaces." The building is "posted as nonsmoking," and it's management prohibits smoking in the lobby and elevators. Finally, the two entrances to the building are covered, contain cigarette receptacles, "provide a good measure of protection from the elements, and are sufficiently large to accommodate many smokers."

2. The Employer's Position

    The Employer proposes, in essence, that indoor smoking be permitted only in the seventh and ninth floor lounges, and prohibited in all other areas of the building under its control. It also would provide, "at no cost to employees, a smoking cessation course" at the new facility during the lunch period, and offers "to meet and discuss with the Unions methods to monitor for compliance with the smoking policy." Finally, it proposes that the policy remain in effect for 3 years, and from year to year thereafter, unless one party gives written notice of its intent to renegotiate.

    Both the bargaining history and its proposals "demonstrate great sensitivity to the concerns expressed by the Unions." In this regard, management could have continued to apply the less restrictive smoking policy implemented in 1987 at the new building, but in deference to the Unions, opted to negotiate an interim policy which, among other things, prohibits smoking in private offices. The "extraordinary precautionary measures" reflected in its proposals are further demonstrated by the "specially acquired and highly sophisticated ventilation systems" installed in each of the four employee lounges and all private offices. These "stat