United States of America

 

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of

DEPARTMENT OF THE ARMY

HEADQUARTERS, XVIII AIRBORNE

CORPS AND FORT BRAGG

FORT BRAGG, NORTH CAROLINA

and 

LOCAL 1770, AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES, AFL-CIO

Case No. 90 FSIP 117

DECISION AND ORDER

The Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina (Employer), 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 Local 1770, American Federation of Government Employees, AFL-CIO (Union).

After the investigation of the request for assistance, the Panel directed the parties to meet informally with Staff Associate Gladys M. Hernandez for the purpose of resolving the issue at impasse. The parties were advised that if no settlement were reached, Ms. Hernandez would report to the Panel on the status of the dispute, including the parties' final offers, and her recommendations for resolving the issue. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a binding decision.

The parties met with Ms. Hernandez on September 18, 1990, at Fort Bragg, North Carolina, but they were unable to reach a settlement. Ms. Hernandez has reported to the Panel based on the record developed by the parties. The Panel has considered the entire record in the case.

BACKGROUND

The mission of the Employer is to provide medical and logistical support to the approximately 40,000 Army troops stationed at Fort Bragg. The Union represents 2 bargaining units, the first consisting of 100 nurses, and the second of approximately 3,700 General Schedule and Wage Grade employees in various administrative, technical, clerical, and trades and crafts occupations. The dispute affects approximately 800 employees who work in the Employer's medical and dental facilities.⁽¹⁾ The parties' multi-unit collective-bargaining agreement expires on April 2, 1992.

The dispute arose during bargaining over an installation-wide smoking policy. The parties have agreed upon a smoking policy for all installation facilities, except for the medical and dental facilities. The current smoking policies for the medical and dental facilities, implemented by their respective commanders, prohibit indoor smoking. Until this dispute is resolved, the smoking ban applies only to military personnel, civilian supervisors, volunteers, visitors, and patients (except when they have written orders from their attending physicians permitting them to smoke). Bargaining-unit employees are permitted to smoke in designated indoor smoking areas established prior to the ban, pending resolution of the dispute.

ISSUE AT IMPASSE

The sole issue at impasse concerns the smoking policy for all medical and dental facilities at Fort Bragg.

POSITIONS OF THE PARTIES

1. The Employer's Position

The Employer proposes to prohibit smoking by bargaining-unit employees in all facilities of the U.S.A. Medical Department Activity (USAMEDDAC) and the U.S.A. Dental Activity (USADENTAC), except "at covered outdoor areas attached to existing facilities which [would] be selected by the Employer and designated as smoking areas."⁽²⁾ Employees are allowed two 15-minute breaks each workday which could be used to smoke, albeit in designated "covered outdoor [smoking] areas." Its proposal is essential to and consistent with the mission of USAMEDDAC and USADENTAC, namely, "promoting and assuring the highest level of health care attainable," a factor which the Panel has considered in resolving similar disputes at medical facilities.⁽³⁾ The trend at private hospitals in nearby Fayetteville, North Carolina, a city in a tobacco-producing State, is toward prohibiting smoking indoors. A total ban on indoor smoking would eliminate exposure by nonsmokers to second-hand tobacco smoke, which the Surgeon General of the United States has concluded is a health hazard.⁽⁴⁾ The ventilation systems of the USAMEDDAC and USADENTAC facilities are inadequate for removing tobacco smoke from the indoor environment and, therefore, unable to eliminate the health hazards associated with passive smoke. Even in areas which undergo the number of air exchanges required under applicable ventilation standards, the air is simply recirculated -- there is no ventilation to the outside, and the mere installation of exhaust fans would not eliminate the risk factors. A major overhaul of the hospital's ventilation system would not be practical or cost-effective since construction of a new hospital is scheduled to begin in 1992. Moreover, a smoking policy which would permit some employees but not others to smoke would "cause[] animosity between employee groups, adversely affect[] morale, and make[] acceptance of the policy generally difficult."

2. The Union's Position

Under the Union's proposal, smoking would be prohibited only in those USAMEDDAC and USADENTAC facilities "where attached smoking areas that protect smokers from extreme heat (above 90 degrees), and extreme cold (below 40 degrees), rain, sleet, snow, et cetera], have been provided."

The Union contends, basically, that the Employer makes no legitimate argument for treating the medical and dental facilities different from other Fort Bragg facilities where the parties have agreed to designate indoor smoking areas provided "second-hand smoke from tobacco products can be sufficiently isolated to protect nonsmokers from its effect. Such determination will be made by the Preventive Medicine Activity using adequate ventilation/circulation criteria." Furthermore, the Federal Labor Relations Authority has determined that health concerns do not support a total ban on smoking.⁽⁵⁾ The Union argues, without support, that the Surgeon General's Report is not scientifically correct. Addiction to tobacco is a handicapping condition which requires the Employer to accommodate the smokers.

Furthermore, a 1988 ventilation survey of selected restrooms and conference/break rooms in the dental clinics conducted by the Employer reveals that some restrooms in these facilities have sufficient ventilation to eliminate passive smoke from the indoor environment -- at least 10 non-recirculated air exchanges per hour. Since the medical and dental facilities are adequately ventilated, designated indoor smoking areas could be established without risking the health of nonsmokers. It would be "inhumane, unthinkable, and unconscionable" for the Employer to require employees to go outside the facilities in inclement weather and, thereby, risk illness, i.e., pneumonia, to smoke. Finally, the Union would agree to designated outdoor smoking areas provided they protect employees from all the elements.

CONCLUSIONS

After carefully considering the evidence and arguments presented by the parties, we conclude that the Employer's proposal provides a reasonable basis for settlement of the dispute. In our view, the nonsmokers' interest in a healthy workplace free of second-hand tobacco smoke outweighs the smokers' interest in being able to smoke indoors. We find that a total ban on smoking within the USAMEDDAC and USADENTAC facilities is consistent with both the scientific studies that have found that environmental tobacco smoke poses a health risk to nonsmokers exposed to it and the health-care mission of these facilities.⁽⁶⁾ Moreover, because the Employer forbids smoking by visitors, patients, and nonbargaining-unit employees within these facilities, our decision will promote the consistent application of the no-smoking policy.

As for those employees who choose to continue to smoke, the "covered outdoor [smoking] areas" to be designated by the Employer should adequately accommodate their needs by providing a degree of protection from the elements. Also, the two 15-minute breaks available to employees may be used to smoke, further mitigating any inconvenience to smokers. Finally, the availability of smoking cessation classes should, over time, facilitate the smokers' adjustment to the prohibition on smoking indoors.⁽⁷⁾

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 the proceedings instituted under 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 Employer's proposal.

 

By direction of the Panel.

Linda A. Lafferty

Executive Director

December 27, 1990

Washington, D.C.

1. There are 139 bargaining-unit employees stationed at the 7 dental clinics, and 18 at the 5 troop medical clinics; the remaining 600-plus employees work at Womack Army Hospital.

2. By "covered outdoor areas," the Employer means the overhangs on the side exits of the dental and troop medical clinics, as well as the sheltered loading area, the sheltered patio-like area by the emergency entrance, and the overhangs on the various side exits to the Womack Army Hospital.

3. Department of the Army. Fort Riley. Kansas and Local 2324 American Federation of Government Employees AFL-CIO, Case No. 89 FSIP 59 (May 3, 1989), Panel Release No. 281 (where the Panel ordered the parties to adopt the employer's proposal banning smoking at its medical facilities, including a hospital comparable to the one in the instant case, because to permit smoking "would be inconsistent with the health care mission of [the employer's] medical facilities, which includes promoting and assuring the highest level of health attainable"); Department of the Army. U.S. Army Medical Department Activity. Fort Leonard Wood. Missouri and Local 738. National Federation of Federal Employees, Case No. 89 FSIP 182 (November 1, 1989), Panel Release No. 287 (where the Panel ordered the parties to adopt the employer's proposal restricting the use of tobacco products, including smokeless tobacco, to outside areas near less frequently used entrances because it would be inconsistent with the employer's health-care mission to provide designated indoor smoking areas); Department of the Army. Madigan Army Medical Center. Fort Lewis Washington and Local 1502. American Federation of Government Employees, AFL-CIO, Case No. 89 FSIP 193 (October 4, 1989), Panel Release No. 285 (where the Panel, persuaded by the employer's argument that it would be inconsistent with its health-care mission to require it to provide a centrally-located smoking area within the medical facility, directed the parties to continue the practice of allowing employees to smoke in the NCO Club during established hours).

4. The Health Consequences of Involuntary Smoking. A Report of the Surgeon General. DHHS Pub. No. (CDC) 87-8398. U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control, Center for Health Promotion and Education, Office of Smoking and Health, 1986.

5. In support of this position, the Union cites National Treasury Employees Union and Department of Health and Human Services, 33 FLRA 61 (1988); however, the basis for the Authority's decision was that there was no compelling need for the agency's regulation establishing a total ban on smoking for employees so as to preclude bargaining over the union's proposal.

6. See supra note 4; and "Indoor Facts No. 5, Environmental Tobacco Smoke," U.S. Environmental Protection Agency, Office of Air and Radiation, June 1989.

7. The parties have already agreed that, "[within the limits of available resources[,] as determined by the Employer, management will consider sponsoring smoking cessation informational sessions[]," but notwithstanding, "the Employer will furnish to interested employees, upon request, information on some existing smoking cessation programs." The Panel's representative learned, during the course of her meeting with the parties, that such programs are offered at Fort Bragg by Corps Fitness and may be attended by military and civilian personnel alike.