FEDERAL DEPOSIT INSURANCE CORPORATION WASHINGTON, D.C. and NATIONAL TREASURY EMPLOYEES UNION
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
|In the Matter of
FEDERAL DEPOSIT INSURANCE
Case No. 99 FSIP 25
NATIONAL TREASURY EMPLOYEES UNION
DECISION AND ORDER
The Federal Deposit Insurance Corporation, Washington, D.C., (Employer or FDIC), 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, between it and the National Treasury Employees Union (Union).
Following an investigation of the request for assistance, arising from bargaining over the Employer’s proposed smoking policy, the Panel directed the parties to participate in an informal conference with a Panel representative to resolve the dispute. If no settlement was reached, the representative would report to the Panel on the status of the dispute, including the parties’ final offers and her recommendations for resolving the matter. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.
Accordingly, Panel Representative (Staff Attorney) Sara L. Walsh conducted an informal conference with the parties on February 11, 1999, that included a tour of three locations in the Washington, D.C., area. Although they explored possibilities for settlement, the parties were unable to resolve the dispute. Ms. Walsh reported to the Panel, and it has now considered the entire record, including written statements which were submitted following the informal conference.
The Employer is a Government corporation whose mission is to examine banks for safety and soundness and insure individual deposits. The Union represents approximately 4,800 bargaining-unit employees. They work at Headquarters, in the Field Liquidation Unit, and in the Divisions of Supervision and Compliance and Consumer Affairs. Employees occupy positions such as attorney, economist, data processing clerk, credit specialist, computer technician, secretary, administrator, accountant, and in crafts and trades, financial management, asset marketing, and other support positions.(1) Although the Union comprises 11 chapters, 8 of which are in a consolidated unit, the various collective-bargaining agreements between the parties have either been renegotiated recently or are currently being renegotiated.
ISSUES AT IMPASSE
The parties essentially disagree over whether: (1) indoor smoking should be continued at the Employer-owned Seidman Center Hotel (Center and hotel); and (2) additional outdoor smoking areas should be designated at FDIC’s three facilities in the Washington, D.C., area.
POSITIONS OF THE PARTIES
1. The Union’s Position
In addition to the locations already agreed upon by the parties, the Union proposes the following:
(1) Virginia Square: (a) Hotel Rooms: maintain status quo (smoking permitted in rooms on the 10th floor- use windows, in-room air filters, and smokeless ashtrays to mitigate second-hand smoke); (b) Hotel [Roof Terrace]: maintain status quo (current practice permits smoking); (c) [Cafeteria Courtyard]: no smoking within 10 feet of doorway or air intakes; otherwise, maintain status quo (smoking permitted); (d) Front [Entrance of Office Building]: no smoking within 25 feet of doorway or air intakes; otherwise, maintain status quo (smoking permitted); (2) 550 17th Street: 7th Floor Balcony: maintain status quo (2 tables [1st floor outdoor smoking area agreed]); (3) 1776 F Street: no smoking within 25 feet of front doors, or along sidewalk between front door and child care parking spaces.
Fundamentally, the Employer has not demonstrated a need to change the status quo. Its policy is an "unjustified and overreaching attempt to restrict smoking by employees," reflecting a greater concern for aesthetics than employee health. In contrast, the Union’s proposal "strike[s] a reasonable balance between the rights of employees who are smokers and the rights of employees and visitors to be protected from second-hand smoke" by following "the directions set forth in Executive Order [E.O.] 13058."(3) In general, the current outdoor smoking areas are open and away from doorways and air intake ducts, so that they neither impede traffic flow nor permit smoke to infiltrate offices. As a result, there is minimal second-hand smoke exposure or impact on productivity.
With regard to the hotel rooms at Virginia Square, the proposal would maintain the status quo permitting indoor smoking in the rooms on the 10th floor. The circumstances in this case warrant deviating from the indoor smoking ban imposed in previous Panel cases because hotel rooms are "residential accommodations." As such, they constitute an exception to the standards of E.O. 13058 that "explicitly recognizes the significant difference between office space and residence space by specifically excluding the latter from the general ban on indoor smoking."(4) In addition, designating rooms for smoking is a common commercial hotel industry practice and FDIC, as a hotel operator, should apply these same standards and practices. Although there is only one central ventilation system in the hotel building, each restroom has additional venting to large rooftop exhaust fans. Under its proposal, additional smoke reduction systems would be installed to mitigate the affects of second-hand smoke. The hotel’s roof terrace is suitable for smoking because it is not an area of general ingress and egress, and is partially covered to protect employees from the elements. Regarding the front entrance of the office complex, the proposal "strikes a reasonable and appropriate accommodation between smokers and non-smokers" by eliminating smoking within 25 feet of the doorway and air vents, pursuant to E.O. 13058 requirements. This location is closer to the workplace than the front courtyard location already agreed to by the parties. The proposed wording would also ban smoking within 10 feet of the cafeteria patio doorway, in compliance with E.O. 13058.
As to the 7th floor balcony at the 17th Street location in Washington, D.C., numerous factors make the designation of two tables for smokers reasonable. They include the absence of air intake systems on the balcony, the limited and reasonable number of tables for smoking (only two), and the weather- and seasonal-related use by non-smokers, all of which minimize employees’ exposure to second-hand smoke. At the F Street Washington, D.C., location, the parties share a common concern regarding the child care facility. The proposal reasonably restricts smoking to the far side of the entrance, away from the day care center and children entering and exiting the building. It is preferable to the smoking shelter at the rear of the facility proposed by the Employer because of its closer proximity to the workplace.
2. The Employer’s Position
The Employer proposes to ban all indoor smoking and limit designated outdoor smoking areas to:
(1) Virginia Square: Three designated smoking areas located: (a) in front of the hotel; (b) in the outside courtyard; and (c) under the overhang at the back entrance.(5) (2) 550 17th Street: One designated outdoor smoking area on the ground floor.(6) (3) 1776 F Street: No smoking in the front of the building and a designated smoking shelter in the back.(7)
The Employer’s proposal would prohibit all indoor smoking and designate only certain outdoor smoking areas and shelters to safeguard the "health and well-being" of all employees. These measures would provide a smoke-free workplace consistent with E.O. 13058, previous Panel decisions, the policies of other Government agencies, and private sector employers.(8) In addition to prohibiting smoking in all "interior space owned, rented, or leased by the executive branch of the Federal Government," E.O. 13058 also provides agencies the discretion necessary to establish more restrictive smoking policies. The proposal reflects FDIC’s intent to use this judgment in implementing "the widest possible restriction of smoking at its facilities." Concerning the proposed designated outdoor smoking areas, they are accessible to the workplace without allowing smoke to enter the air intake system or creating other safety hazards. No other areas are necessary to accommodate employees who smoke.
Regarding the 10th floor hotel rooms at Virginia Square, the Center is not open to the public, and FDIC seeks a more protective smoking policy than required by the E.O., which provides an exception to prohibiting indoor smoking for "residential accommodations." As its letter from the Health and Safety Program Manager at FDIC, certified in industrial hygiene, states: "[T]here is one common ventilation system serving all rooms of the Seidman Center Hotel facility. Second-hand smoke from smoking rooms, therefore, migrates to all other areas of the hotel." The Union’s proposal would continue, rather than eliminate, the risk of second-hand smoke exposure to employees. Prohibiting smoking on the hotel’s roof terrace would prevent smoke from entering the building and its ventilation system. A smoking ban at the front entrance of the office complex also prevents exposing employees, visitors, and guests to second-hand smoke as they enter and exit the building. In addition, the cafeteria patio is a popular location for outdoor eating, and employees should not be exposed to second-hand smoke during meals.
At the 17th Street location, the 7th floor balcony is designed for employees’ use and enjoyment of their meals outdoors and is, therefore, inappropriate as a designated smoking area. Concerning the F Street location, the proposed no smoking area will protect the children attending day care at this location from the dangers of second-hand smoke, to which they are particularly vulnerable. Given the narrowness of the sidewalk outside this facility, the proposed outdoor smoking shelter is the only viable alternative to protect employees from the elements while being reasonably accessible to the office.
Upon careful review of the evidence and arguments presented, we conclude that the dispute should be resolved through the adoption of a compromise solution that continues to permit indoor smoking on the 10th floor of the Seidman Center Hotel, and designates as smoking areas all but one of the outdoor locations proposed by the Union. Turning to the key issue in this dispute, we are persuaded that the residential function of the Seidman Center Hotel presents a special circumstance distinguishing this case from others where the Panel has prohibited indoor smoking. In this regard, designating 1 of the 11 floors for smoking is consistent with practices at commercial, privately-owned hotels. While the Seidman Center Hotel has a single air handling system, the parties confirm that room windows can be opened and that bathrooms are vented separately to a roof top fan. The Union’s proposal also requires the installation of in-room air filters which should further dissipate the smoke. We simply do not find, on the basis of the record before us, that the Employer’s stated health concerns warrant the level of intrusion in employees’ off-duty hours created by its proposal. The fact that E.O. 13058 exempts this type of "residential accommodation" from the general indoor smoking ban appears to support this conclusion.
As to outdoor smoking areas, with one exception, the need for changing the status quo has not been demonstrated. In general, the existing areas are in close proximity to the workplace and located in open space removed from air intake ducts and doorways. They also provide smokers some protection from the elements. Further, smoke appears to dissipate quickly, and foot traffic is unimpeded. Concerning the facility at 1776 F Street, however, we are convinced that eliminating the risks of second-hand smoke to the children attending the day care facility requires the additional precaution of prohibiting outdoor smoking around the front entrance. As a result, we shall order the adoption of the Employer’s proposal addressing that location. Although less convenient than the current location, the proposed area is still accessible to the work site, and the shelter provides employees with a measure of protection from the elements. Finally, our decision in this case should not be interpreted as an endorsement of smoking. The parties