United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
DEPARTMENT OF THE NAVY
PHILADELPHIA NAVAL SHIPYARD
LOCAL F-61, INTERNATIONAL
OF FIREFIGHTERS, AFL-CIO
Case No. 93 FSIP 178
DECISION AND ORDER
The Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania (Employer), and Local F-61, International Association of Firefighters, AFL-CIO (Union), filed a joint 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.
After investigation of the request for assistance, the Panel determined that the impasse should be resolved through an informal teleconference between a Panel representative and the parties. If no settlement were reached, the Panel representative was to notify the Panel of the status of the dispute; the notification would include the final offers of the parties and the representative's recommendations for resolving the matter. Following consideration of this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Pursuant to the Panel's determination, Staff Associate Harry E. Jones conducted a teleconference with the parties on January 11, 1994. During that proceeding, the parties were unable to reach agreement on the one outstanding issue. Mr. Jones has reported to the Panel, and it has now considered the entire record.
The Employer builds, repairs, and overhauls naval vessels. The bargaining unit consists of 45 firefighters and fire inspectors. The parties' collective-bargaining agreement expired in November 1992, but remains in effect at the present time. Impasse was reached following negotiations over the Employer's proposal to revise the smoking policy in the Fire Headquarters Building (Building 2). The affected employees are six fire inspectors who work there, four of whom are smokers.
The sole issue in dispute is the smoking policy for the Fire Headquarters Building.
1. The Employer's Position
The Employer proposes that indoor smoking be prohibited. It would, however, allow employees to smoke in a designated area inside the main fire station (Building 56), which is located 75 to 80 yards from the Fire Headquarters Building. This approach recognizes the dangers of secondhand smoke to all employees, while providing some accommodation to smokers. The Union's approach, which would allow smoking in the vestibule of Building 2, fails to recognize that secondhand smoke may seep into the building when the door opens, and that individuals entering or exiting would likely be exposed to the hazard. In addition, the Union's proposal regarding smoking cessation classes, and its suggestion that an electronic air cleaner be installed in the vestibule, fail to recognize the installation's budgetary constraints. Overall, the Union's proposal is inconsistent with both the Panel's approach to the issue and the growing body of scientific evidence concerning the matter.
2. The Union's Position
The Union's proposal is as follows:
Smoking will be prohibited within Building 2 as long as the employees are permitted to utilize an enclosed area directly in front (south end) of the building. A committee will be established between the Employer and the Union to identify the existence of a smoking cessation program either through the current PNSY health care provider, the Naval medical facility on base, or another appropriate facility or organization within the general area to comply with SECNAVINST 5100.13A, Section (5), Policy [which states] 'and provides smokers with encouragement and professional assistance to stop smoking,' and that the smoking regulations currently under discussion will not be enacted until such a time as the smoking cessation program has been initiated.
Designating the vestibule as a smoking area would accommodate those individuals who are no longer permitted to smoke indoors. Since the vestibule has two windows, secondhand smoke would be vented directly to the outside, thereby eliminating any hazard. Also, because the vestibule is a plywood addition, which is separated by doors from the main entrance, employees are not likely to be exposed to secondhand smoke at their workstations. While the above measures should provide a healthful work environment, the Employer also could install an electronic air cleaner in the vestibule, at minimal expense, to guarantee that no employee is exposed to secondhand smoke. Finally, requiring the Employer to provide cessation classes is consistent with numerous Panel decisions and should be beneficial to those who wish to break the habit.
With respect to the Employer's proposal, the smoking area in Building 56 is 75 to 80 yards from the Fire Headquarters Building and, therefore, does not meet the Panel's standard that designated smoking areas be "reasonably accessible." Requiring employees to walk this distance each time they want to smoke also could result in significant lost productivity. In addition, the Employer's refusal to provide smoking cessation classes is inconsistent with previous Panel decisions which require that such classes be given at no cost to employees; it also fails to recognize the benefit, to the Employer, of having healthy employees. The argument that the expenditure of funds cannot be justified due to the impending closure of the Shipyard overlooks the fact that the fire department will continue to protect other areas of the installation following the closure.
Having considered the record in this case, we conclude that neither party's proposal would adequately resolve the dispute. On the one hand, the Union's proposal would create a situation whereby anyone entering or exiting the building through the main entrance would be exposed to secondhand smoke; this approach ignores the overwhelming scientific evidence regarding the hazards connected with exposure to environmental tobacco smoke. The Employer's proposal, on the other hand, is inadequate, as it merely shifts indoor smoking to another location. Because of these deficiencies in the parties' proposals, we shall adopt a compromise which we believe will balance the competing interests of all employees. In addition to prohibiting indoor smoking in the Fire Headquarters Building, we shall direct the Employer to designate an outdoor smoking area 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. Moreover, because smoking cessation initiatives are beneficial to those who wish to break the habit, we shall direct the Employer to provide, one time for each employee, a smoking cessation program. In issuing this order, we are mindful of the Employer's budgetary constraints and, therefore, urge the parties to work together, in partnership, to devise a creative way of implementing our directive.
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 Fire Headquarters Building (Building 2) shall be prohibited.
2. The Employer shall designate an outdoor smoking area which (a) is reasonably accessible to employees and (b) provides a measure of protection from the elements.
3. 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.
By direction of the Panel.
Linda A. Lafferty
February 7, 1994