U.S. Federal Labor Relations Authority

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United States of America



In the Matter of









Case No. 98 FSIP 129





    The Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire (Employer or Shipyard) and the Portsmouth Metal Trades Council, AFL-CIO (Union), jointly 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, 5 U.S.C. § 7119.

    Following an investigation of the request for assistance, which concerns amenities for outside smoking shelters, the Panel determined that the dispute should be resolved on the basis of written submissions from the parties, including rebuttals. After receiving their submissions, the Panel would take whatever action it deems appropriate to resolve the impasse. Written submissions were made pursuant to this procedure,(1) and the Panel has now considered the entire record.


    The Employer’s mission is to repair and refurbish naval vessels for the Atlantic Fleet. The Union presents approximately 1,200 bargaining-unit employees, the majority of whom are professionally-trained mechanics. The parties’ master collective-bargaining agreement, which was to have expired in 1985, has been renewed annually. The dispute arose during bargaining over a smoking policy for the Shipyard.(2) The parties have agreed that in order to accommodate smokers who will be prohibited from smoking indoors when the smoking policy is implemented, the Employer shall construct 18 smoking shelters in designated areas throughout the Shipyard which measure 4 feet by 8 feet, are made of a plexiglass-type material with a steel frame and standard personnel door, do not have seating, and are ventilated through swinging doors and the base of the structure, which has a 3-inch opening around the bottom.


      The sole issue in dispute is whether the smoking shelters should be heated and have their own lighting.


1. The Union’s Position

     The Union proposes that the smoking shelters be equipped with heat and lights; in the alternative, the shelters should be equipped with only lights. Essentially, without being heated, snow and ice are likely to accumulate in the shelters during winter, thereby creating safety concerns for employees who may slip and fall while standing in them. If they are heated, snow and ice would melt, eliminating potentially slippery surfaces. Providing these amenities also would help the Employer avoid Workers’ Compensation claims since employee injury is less likely to occur in such circumstances. Furthermore, because snow and ice are prevalent during 6 months of the year, heating the shelters would provide employees with a more comfortable environment in which to take their smoking breaks. Conversely, if the shelters are not equipped with heat and lights employees might not use them due to safety concerns and the lack of "creature comfort." In addition, employees may be tempted to smoke indoors which could result in workplace conflicts with non-smokers.

    In the alternative, should the Panel determine that heating the shelters is not warranted, the Employer should, at a minimum, be required to install direct lighting for them. Ambient lighting, which the Employer proposes, may be inadequate when a shelter is not heated. In this connection, frost is likely to accumulate on the glass walls and prevent the light from nearby buildings and street lights from penetrating the glass. Without the bright illumination of direct lighting, smoking shelters would be dark during the second and third shifts, posing a threat to employee safety and security.

2. The Employer’s Position

     In essence, the Employer proposes that outdoor smoking shelters should not be heated and lighting for them should be ambient, except where this would not provide adequate illumination. Heating and directly lighting a shelter would require that electrical service be provided to each of 18 smoking shelters at an exorbitant cost for construction and maintenance. In this regard, estimates indicate that without electrical service, each shelter should cost approximately $10,500 to construct; adding electrical service would increase the cost significantly to approximately $14,550 per shelter. Additionally, annual maintenance costs would increase threefold from an estimated $182 per shelter, without electricity, to $616 with electricity. Moreover, the design of the smoking shelters, with a 3-inch opening at the bottom perimeter and swinging personnel doors, is not conducive to holding heat; since the structures are not weather-tight, the Employer, in essence, would be paying to "heat all outdoors" if the Union’s proposal is adopted. Shelters are not intended to be comfort zones for employees but, rather, should provide them with a "modicum" or "measure of protection" from the elements, as the Panel has ordered in other cases involving smoking policy.(3) Furthermore, employees are accustomed to dressing for severe weather in the wintertime and, therefore, it is likely that standing in an unheated shelter for a short period of time while on a smoke break would not be uncomfortable for them.

    With respect to lighting, a study by an industrial hygienist shows that, in most instances, there is adequate ambient lighting for shelters from nearby buildings and street lights. Where ambient lighting is inadequate, management shall take corrective action, such as redirecting nearby building lighting toward the shelter. The Union overstates a concern about slippery surfaces inside the smoking shelters. Any snow or ice which accumulates inside the shelters could be removed by employees who would be permitted to use the salt, sand, and shovels which are already provided for building occupants to clear sidewalks and steps during winter. The Union’s prediction that employees may not use unheated smoking shelters and, instead, resort to smoking indoors also is speculative and overstated because those who choose to smoke indoors "will be subjected to appropriate disciplinary action consideration."


     Having carefully reviewed the evidence and arguments presented, we are persuaded that the dispute should be resolved on the basis of the Employer’s proposal. In our view, management already has committed itself to a considerable financial expenditure to construct 18 smoking shelters throughout the Shipyard. The additional cost of approximately $73,300 to provide heat and direct lighting to the shelters is unwarranted, particularly in view of the fact that the Employer has agreed to improve ambient lighting in situations where its study has shown that adequate illumination otherwise would not be provided. Furthermore, heating the shelters would appear to be a waste of energy resources since they are designed with a 3-inch opening at the bottom perimeter which would allow heat to escape easily. Finally, we believe that unheated shelters should provide smokers with adequate protection from the elements by shielding them from exposure to wind, rain and snow. As to any ice or snow which may accumulate in an unheated shelter, the Employer has indicated its intent to continue to provide salt and shovels as a self-help resource for employees to clear any ice or snow which may pose a danger to safety. Accordingly, we shall order the adoption of the Employer’s proposal.


       Pursuant to the authority vested in it by 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 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following:

    The parties shall adopt the Employer’s proposal.


By direction of the Panel.

H. Joseph Schimansky

Executive Director

September 29, 1998

Washington, D.C.


1.Only the Employer submitted a rebuttal statement.

2.Three other unions representing employees at the Shipyard also were involved in negotiations over a smoking policy but reached agreement with the Employer regarding this issue.

3.Among the prior Panel decisions cited by the Employer which concern smoking shelters are: Department of the Air Force, Malmstrom Air Force Base, Malmstrom, Montana and Local 2609 American Federation of Government Employees, AFL-CIO, 92 FSIP 32 (October 27, 1992), Panel Release No. 338; and Department of the Air Force, Eielson Air Force Base, Eielson, Alaska and Local 1836, American Federation of Government Employees, AFL-CIO, 95 FSIP 141 (September 27, 1995), Panel Release No. 379.