United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    The Department of the Air Force, Air Force Materiel Command (AFMC), Wright-Patterson Air Force Base (WPAFB), Ohio (Employer), 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 Local F-88 of the International Association of Fire Fighters, AFL-CIO (Union).

    Following an investigation of the dispute, arising from negotiations over the local smoking policy, the Panel determined that the dispute should be resolved through the issuance of an Order to Show Cause. In this regard, the Panel directed the parties to show cause why wording previously adopted in similar circumstances should not also be imposed to settle the parties’ dispute.⁽¹⁾ After considering the entire record, including the parties’ statements of position, the Panel would issue a binding decision to resolve the dispute. The parties submitted final offers and written statements of position pursuant to this procedure. The Panel has now considered the entire record.

BACKGROUND

ISSUES AT IMPASSE

    The parties’ basic disagreement concerns whether indoor smoking should be permitted to continue in the four firehouses located at WPAFB.

1. The Union’s Position

    In essence, the Union proposes that the Employer maintain the status quo by allowing employees to smoke indoors in designated smoking areas until agreement on a new CLA is reached. As the party proposing a change in the status quo, the Employer has failed to meet its burden of demonstrating why its proposal should be adopted. Its primary reason for implementing the change is that "the practice deviates from the language in the [CLA]," rather than basing the change on issues "germane to smoking." Additionally, the practice of smoking indoors has continued to date at various other local installations covered by the CLA with the knowledge of the parties at the Command level.

2. The Employer’s Position

    The Employer is willing to accept the wording in the first sentence of the Panel’s Order to Show Cause because its effect would be nearly identical to the wording the parties agreed to at the Command level.⁽³⁾ Other than the four fire stations, "no other work areas at WPAFB permit indoor smoking." In addition, the Bioenvironmental Engineering Flight Commander, confirms the following in a signed letter:

    All four WPAFB Fire Stations’ designated smoking areas are not enclosed areas with negative exhaust systems. They are placed in areas next to the emergency vehicles, laundry facilities, and fitness rooms. Individuals working in these areas and facilities would not be protected from exposures to environmental tobacco smoke. Therefore, all four stations do not comply with the Section 2 of the 1997 Executive Order.

    The fact that firefighters have 24-hour uncommon tours of duty is not a sufficient reason to permit tobacco use accommodations that are different from those already accorded other WPAFB employees. Areas provided for cooking, dining, physical fitness, and leisure are mission-necessitated in order to permit firefighters to maintain readiness and are not "residential areas."

    With regard to the second sentence of the Order to Show Cause, any requirement to establish a "reasonably accessible . . . measure of protection" for smokers "is substantial, burdensome, potentially very costly, and contrary to established practice." Providing outdoor smoking areas is unnecessary, and the impact of not providing these areas would be minimal since firefighters were able to locate their own smoking areas when indoor smoking was banned from July 7, 1997, to October 24, 2000.

    Upon careful review of the evidence and arguments presented in this case, we conclude that the parties’ dispute over the smoking policy covering firefighters at WPAFB should be resolved by adoption of the wording in the Panel’s Order to Show Cause. In this regard, we are not persuaded that firehouses should be treated differently from other Federal workplaces. Unlike other instances where the Panel has permitted indoor smoking, firefighters are compensated for the entire 24-hour duty period. For this reason, the Union’s main contention that firehouses are "residences" does not provide a sufficient basis for departing from previous Panel decisions on smoking. More importantly, the record establishes that the smoking areas in the firehouses expose non-smokers to the proven hazardous effects of second-hand smoke. Hence, our decision complies with the instructions in E.O. 13058 "to establish a smoke-free environment for Federal employees."

    Turning to the Employer’s concerns about the cost of providing outdoor smoking areas, contrary to its view, compliance with our wording does not mandate the construction of costly shelters, but merely requires that smokers be accorded a "measure" of protection from the elements. In our view, this approach strikes an appropriate balance between the competing interests of smokers and non-smokers by coupling the elimination of indoor smoking with some accommodation for those who continue to smoke. Finally, any disagreements that may arise over the adequacy of the accessibility and protection provided by the outdoor smoking areas designated by the Employer should be resolved through the parties’ negotiated grievance procedure.

ORDER

    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 § 2471.11(a) of its regulations hereby orders the following wording:

1. All indoor smoking shall be prohibited, and

2. The Employer shall designate outdoor smoking areas which are (a) reasonably accessible to employees and (b) provide a measure of protection from the elements.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

May 24, 2001

Washington, D.C.

2.  E.O. 13058, Protecting Federal Employees and the Public from Exposure to Smoke in the Federal Workplace, states in relevant part the following:

(b) The Order does not extend to any residential accommodation for persons voluntarily or involuntarily residing, on a temporary or long-term basis, in a building owned, leased, or rented by the Federal Government.