United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
UNITED STATES INTERNATIONAL
TRADE COMMISSION
WASHINGTON, D.C.
and
LOCAL 2211, AMERICAN
FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO
Case No. 90 FSIP 81
DECISION AND ORDER
Local 2211, American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under section 7119 of the Federal Service Labor-Management Relations Statute (Statute) between it and the United States International Trade Commission, Washington, D.C. (Employer or ITC).
The Panel determined that the impasse should be resolved pursuant to written submissions from the parties with the Panel to take whatever action it deemed appropriate to resolve the impasse. Submissions were made pursuant to these procedures and the Panel has considered the entire record.
BACKGROUND
The Employer administers a variety of trade laws, and conducts investigations and studies for legislative and administrative officials. The Union represents approximately 350 employees who work primarily as trade analysts, economists, attorneys, clerks, and secretaries.
ISSUE AT IMPASSE
The impasse concerns the smoking policy to be implemented at the Employer's headquarters facility.
1. The Union's Position
The Union proposes the following wording:
The parties understand that a smoking policy can increase stress to certain employees; however, the goal of the smoking policy is to minimize the exposure of nonsmoking employees to second-hand smoke which the Surgeon General has found constitutes a health hazard. This goal will be achieved by limiting all smoking to areas where the air is exhausted outside the building and not returned into the general building ventilation system.
1. Smoking Cessation Program
a. Management will arrange periodically smoking cessation programs and offer them to ITC employees on a voluntary basis.
b. Participating employees will be placed on administrative leave during time of attendance.
2. Designated-Smoking Areas
Smoking is banned in all work areas, and is only allowed in the following non-work, designated-smoking areas. Employees shall be allowed reasonable time to use these non-work areas, and also to go outside the Building to smoke.
a. The areas listed below are available for all ITC employees and the public: The men's and women's restrooms on the east end of the third, the west ends of the fourth, fifth, sixth, and seventh floors of the ITC Building. No eating or drinking is allowed in these designated-smoking areas.
b. Appropriate receptacles will be provided in all designated-smoking areas. Signs indicating which areas are designated will be installed on the Outside of the door of each area. The doors to these areas will be kept closed as much as practicable.
c. Appropriate air cleaning systems will be installed in all designated-smoking areas. These air cleaning systems will be acquired through GSA procurement schedules to ensure that applicable Federal standards are met. A maintenance and cleaning contract will be executed to service these cleaning systems.
d. Lighted tobacco products shall not be carried into or from a designated-smoking area.
e. The agency shall conduct random air sampling tests as provided for by Article XV, Section 4, of the collective bargaining agreement between ITC and AFGE Local 2211.
3. Duration of Agreement
This agreement shall remain in force and effect through March 23, 1992.
4. Application of Agreement
This agreement shall pertain to all persons using, assigned to, visiting or working in the areas controlled or leased by the agency.
Under its proposal, the largest restrooms on floors with two sets of restrooms would be designated as smoking areas, and these would be the only inside areas where employees or visiting members of the public could smoke. This is reasonable because the ITC building has sealed windows and is ventilated by a central heating and air-conditioning system (HVAC), and only restrooms are directly vented to the outside. Consequently, there is no other way to solve the current problems of "drifting smoke' or "the situation when nonsmoking employees are required to have contact in a work setting with smoking employees." Its proposal is easily understandable, simple to enforce, and similar to the smoking policy currently in effect at a number of other Federal agencies.(1) Moreover, allowing employees a reasonable amount of time to leave their work areas to smoke conforms to what already is an "implicit" Employer policy.
The Employer's proposal, on the other hand, essentially would maintain a situation which "has proved to be an irritant to a number of nonsmoking employees, and created morale problems." Its approach of "grandfathering in" private offices which are already smoking areas is confusing, and does nothing to eliminate nonsmokers' current problems. In this regard, "it may take years before substantial progress is made in getting. second-hand smoke out of work areas." The Employer's proposal also puts a burden on nonsmokers to provide medical certification to prevent them from being required to enter work areas where smoking is allowed. Its requirement that smokers extinguish their cigarettes when a nonsmoker enters the work area is unrealistic. That part of its proposal which would give Office Directors total discretion to determine smoking policy within their suites is unacceptable because such decisions should be made on a "scientific or technological basis which takes into consideration building ventilation and adjacency of proper smoking areas." Moreover, those other portions of its proposal which would place a burden on the Union to enforce misconduct also are unacceptable unless the Employer is willing to cede to the Union the right to discipline employees.
The Employer's proposal would provide smoking privileges to the public at the expense of the health of nonsmoking employees. Further, unless smoking is permitted only in restrooms which are directly vented to the outside, "smoke in any area of the building" is "recycled throughout the building affecting nonsmoking employees even if they do not smell the smoke. This is supported by the conclusions of an industrial hygienist hired by the Employer to conduct an air quality study, issued on August 1, 1990, who stated that detected levels of carbon monoxide in the building "may indicate the reentrainment of smoking contaminants within the building's main HVAC systems." In addition, the Environmental Protection Agency (EPA), among other regulatory and expert groups, has recommended that smoking in HVAC buildings be limited to separately ventilated areas, or eliminated entirely.(2) Finally, the adoption of the Union's proposal is supported by the results of a survey of employee opinion in which "51 out of 125 employees indicated that the smoking situation in the building was poor or unsatisfactory."
2. The Employer's Position
The Employer's proposal is as follows:
1. Smokinq Cessation Proqram
a. Management will arrange periodically smoking cessation programs and offer them to ITC employees
b. Participating employees will be placed on administrative leave during time of attendance.
2. Designated-Smoking Areas
a. The areas listed below are available for all ITC employees and the public. No eating or drinking is allowed at these designated smoking areas.
1. The waiting area between the Main Hearing Room (Room 101) and ALJ Courtroom A (Room 100 ).
2. The men's and women's restrooms on the east end of the third, the west end of the fourth, the east end of the fifth, the west end of the sixth and the east end of the seventh floors of the ITC Building.
b. The anteroom located at the rear of ALJ Courtroom C (Room 219C) for the public attending ALJ hearings only.
c. Each Office Director is responsible for limiting exposure to involuntary tobacco smoke for nonsmokers while allowing those who smoke to continue to do so conveniently without negatively affecting productivity. Individual single-occupant offices, and individual multiple-occupant offices may be designated as smoking areas by Office Directors only where all assigned employees smoke. Upon the effective date of this agreement no additional single-occupant nor multiple-occupant office shall be designated as a smoking area, except as follows: a Commission staff employee who occupies a designated-smoking area on the date on which this agreement is effective may, with the approval of his/her Office Director, be assigned to another office which may be designated as a smoking area. Additionally, those offices designated as smoking areas as of the effective date of this agreement shall remain designated only as long as they meet the above stated criteria. Should such an office become no longer eligible to be designated for smoking for any reason, that office will not be eligible to be designated for smoking again.
d. Management agrees that smoking shall not be permitted in open office space, any reception area of an office, or in individual multiple-occupant offices shared by smokers and nonsmokers. When a non-smoking employee enters an office designated for smoking, all smoking materials shall be extinguished by persons occupying that office. An employee who provides medical certification that he or she is physically adversely affected by residual smoke shall not be required to enter offices that are designated-smoking areas, and will not be subject to any counseling or disciplinary action as a result of declining to enter such an office.
e. Each Office Director may:
1. Completely ban smoking in the suite(s) under his or her jurisdiction.
2. Determine which type of smoking materials are allowed in designated areas within the suite(s) under his or her jurisdiction.
f. All visitors (ITC employees and the public) will honor the designations made by the Office Directors in accordance with section 2 (c), (d) and (e).
g. Appropriate receptacles shall be provided in all designated-smoking areas. Signs indicating which areas are designated shall be installed on the outside of the door of each area. The doors to these areas shall be kept closed as much as is practicable.
h. Appropriate air cleaning systems will be installed in all designated-smoking areas. These air cleaning systems will be acquired through GSA procurement schedules to ensure that applicable Federal standards are met. A maintenance and cleaning contract will be executed to service these cleaning systems.
i. Lighted tobacco products shall not be carried into or from a designated-smoking area.
j. The agency shall conduct random air sampling tests as providedfor by Article XV, Section 4, of the collective bargaining agreement between ITC and AFGE Local 2211.
3. Correction of Violations
Each Office Director is responsible for ensuring that the provisions of this agreement are followed. Any alleged violations of this agreement may be submitted by the Union to the Designated Agency Safety and Health Official, i.e., the Director of Administration. He/She will investigate the complaint and, upon a finding of a first violation, shall issue a written warning to the Office Director; and, upon a finding of any subsequent violation, shall ban smoking in that office. Such a ban shall be in force and effect for a 6-month period.
4. Effective Date and Duration of Agreement
This agreement shall be effective as soon as practicable upon installation of air cleaning systems in all of the restrooms listed in Section 2(a)(2).
This agreement shall remain in force and effect through March 23, 1992.
Its proposal "strikes the most reasonable balance between protection of employees from exposure to second-hand smoke and recognition of the needs of smokers." In this regard, its approach "severely restricts" smoking in the building to designated restrooms, the waiting areas adjacent to hearing rooms, and offices occupied by employees who smoke that are equipped with smoke removal equipment. The proposal would ensure that no additional designated-smoking areas are added, and the small number of private offices where smoking currently is permitted would decrease as smokers give up the habit or leave ITC employment. It would protect nonsmokers by (1) requiring smokers in designated offices to extinguish smoking materials upon nonsmokers' entry into the area, and (2) providing strict sanctions against those who violate the policy. It also, however, accommodates the needs of smokers by allowing them "to avoid the indignity of being herded into restrooms.
Recent air quality tests demonstrate that the building's HVAC system supplies air that far exceeds all air quality guidelines. In this connection, the report cited by the Union concerning carbon monoxide levels is dated and should be disregarded. It has conveniently ignored the results of the most recent air quality tests which show that the building "has de minimis levels of carbon monoxide." Indeed, the Union merely relies on general statements that second-hand smoke is harmful without providing any specific evidence that the building's HVAC system does not fully dissipate smoke. Its proposal "ignores smokers' needs without providing any greater health protection" than the Employer's. Moreover, the Union has never offered any documentation for its unfounded claim that the current smoking policy has created morale problems. In fact, it is the Union's proposal which would create such problems "through its demeaning treatment of smokers." In this regard, the Union's "survey" suffers from numerous deficiencies that render it meaningless as an indicator of employee support for its position. Nonetheless, the survey actually shows that "most responding employees are not dissatisfied with the current policy."
Smoking should continue to be permitted in areas adjacent to the first and second floor hearing rooms for the convenience of the public as well as employees. Requiring the public to leave the building to smoke is impractical when weather is cold or inclement. Moreover, the Employer has never given "implicit" permission to employees to leave the building to smoke, so under the Union's proposal both visitors and employees "would be packed into the designated restrooms on the first and second floors to smoke." Further, allowing employees "reasonable time" for smoke breaks, and to leave the building to smoke would be "terribly disruptive," partly because the term as applied to smoking is "too vague to have any practical meaning." Finally, it is untrue that the Employer's proposal would necessarily involve the Union in enforcement, although it does encourage the Union to inform it about possible violations of the policy.
CONCLUSIONS
Having considered the evidence and arguments in this case, we note preliminarily that the parties are in general agreement on many matters in connection with the smoking policy. With respect to the areas where they disagree, however, we conclude that neither party's proposal adequately would resolve the impasse. On the one hand, we believe that the Union's proposal would not properly balance the interests of (1) smokers and nonsmokers, or (2) the bargaining-unit employees it represents and the other employees in the building, such as those in the Print Shop who are represented by a separate bargaining agent. In this regard, the Union may have overstated the health risks to nonsmokers in the building by failing to take into account the results of the most recent air quality studies performed at the facility. Moreover, we find no justification in the record for changing the restrooms currently designated as smoking areas, nor any need for the introductory portion of the Union's proposal which states the general goal of the smoking policy. Also, that portion of the proposal which would require the Employer to grant employees reasonable time to smoke could lead to unnecessary difficulties between supervisors and smokers, as well as to resentment on the part of nonsmokers.
The Employer's proposal, on the other hand, accords too much deference to the preferences of employees and visitors who smoke, at the expense of the health of nonsmokers, and would be difficult to enforce. In this regard, a phased reduction in the number of individual single- and multiple-occupant offices designated as smoking areas would appear to be too casual an approach given the mounting scientific evidence of the adverse affects of residual smoke on the health of nonsmokers. This is particularly true in the case of the proposal at issue, which could permit the number of single- and multiple-occupant offices designated as smoking areas to remain the same for an indefinite period of time. We also are persuaded that compliance problems would inevitably arise if persons occupying those offices are required to extinguish all smoking materials whenever nonsmokers enter. Moreover, placing the burden on nonsmokers to provide medical certification that they are 'adversely affected by residual smoke before permitting them not to enter such offices, as the Employer's proposal provides, is misguided.
In accordance with the factors identified above, we shall order the adoption of compromise wording which in our opinion strikes a better balance between the interests of both smokers and nonsmokers, and the bargaining-unit and other employees in this case. The compromise leaves in place those matters upon which the parties agree. On the issue of designated-smoking areas, the restrooms currently designated as smoking areas, as well as the area outside the building, adequately should meet the needs of the bargaining-unit employees represented by the Union as well as visitors who wish to smoke. Accordingly, we shall order that these designated-smoking areas be retained. To avoid unnecessary enforcement problems, these smoking areas should also be made available for the use of any other employees. With respect to any
additional smoking, however, to protect the health of nonsmokers, we also shall order that there be no smoking whatsoever in any area where employees represented by the Union may be assigned or sent as part of their duties. Moreover, given the circumstances of this case, if it is determined through air quality studies that smoking in any area other than those designated in this Order is hazardous to the health of bargaining-unit employees, then smoking in those areas shall be prohibited. Finally, in recognition of the fact that Print Shop employees are represented by a different union, we shall include specific wording to the effect that, when our Order is implemented, the union representing the Print Shop employees shall have the right to negotiate with the Employer over this policy.
ORDER
Pursuant to the authority vested in it by section 7119 of the Federal Service Labor-Management Relations Statute and because of the failure of the parties to resolve their dispute during the course of proceedings instituted pursuant to section 2471.6(a) (2) of the Panel's regulations, the Federal Service Impasses Panel under section 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the following wording:
1. Smoking Cessation Program
a. Management will arrange periodically smoking cessation programs and offer them to ITC employees on a voluntary basis.
b. Participating employees will be placed on administrative leave during time of attendance.
2. Designated-Smoking Areas
a. All restrooms which are currently designated as smoking areas shall remain so. These areas are available for all employees and the public. No eating or drinking is allowed in these designated-smoking areas.
b. Appropriate receptacles will be provided in all designated-smoking areas. Signs indicating which areas are designated will be installed on the outside of the door of each area. The doors to these areas will be kept closed as much as practicable.
c. Appropriate air cleaning systems will be installed in all designated-smoking areas. These air cleaning systems will be acquired through GSA procurement schedules to ensure that applicable Federal standards are met. A maintenance and cleaning contract will be executed to service these cleaning systems.
d. Lighted tobacco products shall not be carried into or from a designated-smoking area.
e. The agency shall conduct random air sampling tests as provided for by Article XV, Section 4, of the collective bargaining agreement between ITC and AFGE Local 2211.
3. Duration of Agreement
This agreement shall remain in effect through March 23, 1992.
4. Application of Agreement
There shall be no smoking whatsoever in any area where bargaining-unit employees represented by the Union may be assigned or sent as part of their duties. If it is determined through air quality studies that smoking in any area other than those designated in this Order is hazardous to the health of bargaining-unit employees, then smoking in those areas shall be prohibited.
Upon implementation of this agreement, the union representing the Print Shop employees shall have the right to negotiate with the Employer over this policy.
By direction of the Panel.
Linda A. Lafferty
Executive Director
November 20, 1990
Washington, D.C.
1. The Union provides no comparability data to support this statement.
2.See U.S. Environmental Protection Agency, "Indoor Facts No. 5, Environmental Tobacco Smoke, n U.S. Environmental Protection Agency, Office of Air and Radiation, June 1989.