United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

 

In the Matter of 

DEPARTMENT OF TRANSPORTATION 

U.S. COAST GUARD 

U.S. COAST GUARD YARD 

CURTIS BAY, MARYLAND 

and 

LOCAL 2317, AMERICAN 

FEDERATION OF GOVERNMENT 

EMPLOYEES, AFL-CIO 

Case No. 90 FSIP 180

DECISION AND ORDER

Local 2317, 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 Department of Transportation, U.S. Coast Guard, U.S. Coast Guard Yard, Curtis Bay, Maryland (Employer).

After 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.

Ms. Hernandez met with the parties on August 27, 1990, at Curtis Bay, Maryland. The parties were unable to reach a settlement. Ms. Hernandez has reported to the Panel based on the record developed by the parties, and the Panel has considered the entire record in the case.

BACKGROUND

The Employer provides industrial support to the Coast Guard, including shipbuilding, repair, ordnance, electronic equipment overhaul, and manufacture of select Coast Guard items, as well as facilities to tenant activities. The Union represents approximately 200 General Schedule employees who hold positions in, among others, supply, procurement, computer systems, mechanical and electrical engineering, and administration. The parties' master labor agreement expires in June 1992.

The dispute arose during negotiations over a new smoking policy proposed by the Employer which implements a Coast Guard-wide instruction, 6280.1, banning smoking in all Coast Guard facilities or spaces, with noted exceptions. Currently, bargaining-unit employees are permitted to smoke in Buildings 4, 83, and 86 (excluding the conference room), the second floor of Building 1, the walkway between Buildings 3 and 31, the landing to the outside stairway (known as the "veranda") in Building 58, the Bachelor Officers' Quarters, and designated areas in the civilian cafeteria.⁽¹⁾

ISSUE AT IMPASSE

The sole issue at impasse concerns the smoking policy for all Supply Center and Yard facilities.

POSITIONS OF THE PARTIES

1. The Employer's Position

The Employer proposes to prohibit smoking by bargaining-unit employees in all Supply Center and Yard buildings. Its proposal is designed to protect the health of nonsmokers by eliminating tobacco smoke from their work environment and of smokers by discouraging smoking. The Surgeon General of the United States has concluded that passive smoke is a health risk to nonsmokers. Designating certain restrooms as smoking areas would not further its objective because restrooms are not sufficiently ventilated, a factor which the Panel has considered in resolving similar cases.⁽²⁾ Further, its proposal would help reduce employee absenteeism due to smoking-related illnesses and, thereby, increase productivity. Moreover, to assist employees who desire to quit smoking, it has implemented a smoking cessation program offered at no cost to employees on duty time.

2. The Union's Position

The Union proposes to permit smoking (1) in currently-designated smoking areas, i.e., the walkway which connects Buildings 3 and 31; (2) in all restrooms which meet the American Scientific Heating and Refrigeration Association Engineers (ASHRAE) ventilation standards; (3) at workstations with built-in air filtration systems;⁽³⁾ or (4) in a sheltered, environmentally safe, and secured area, if (1) through (3) are not available in the building. If restrooms meet the ASHRAE ventilation standard, second-hand tobacco smoke is effectively removed from the environment. In addition, the workstation filtration system completely removes harmful smoke particulates from the air, and the ventilation system in the connecting walkway is sufficient to eliminate health hazards associated with passive smoke. Moreover, a "windstorm" would not be needed to remove tobacco smoke from the Employer's buildings, since that level of ventilation would be needed only in buildings where smoking is unrestricted, and that is not the case here. Finally, although the Employer contends it is concerned about smoking-related illnesses, its proposal may only contribute to them should employees who choose to smoke have to go outside the facilities and brave the elements to do so.

CONCLUSIONS

Having considered the evidence and arguments in this case, we conclude that the parties should adopt the Employer's proposal as modified herein as it would better protect employees from the risks associated with second-hand tobacco smoke.⁽⁴⁾ In our view, although the Union's proposal would restrict smoking to currently designated areas and restrooms which meet the ASHRAE air ventilation standards, these restrictions may not adequately protect nonsmokers. No evidence, i.e., air quality studies, was provided by the Union which demonstrates that the Employer's facilities meet the standards set by ASHRAE or any other organization concerning acceptable levels of tobacco smoke particulates in the environment. The Employer's proposal for a total prohibition on smoking in buildings, on the other hand, ensures that employees are more likely to have a healthful work environment free from the contamination of second-hand tobacco smoke. The smoking cessation clinics offered to employees free of cost during work-hours should facilitate employee adjustment to the ban on indoor smoking.

We are persuaded, however, that there should be some accommodation for those who choose to continue to smoke. Accordingly, the Employer should designate outdoor smoking areas which (1) are reasonably accessible to employees, and (2) provide a modicum of protection from the elements. In our view, any inconvenience to employees caused by requiring them to go to Employer-designated outdoor areas to smoke is outweighed by the health benefits to nonsmokers.

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, modified to provide for designated outdoor smoking areas to be selected by the Employer which (1) are reasonably accessible to employees, and (2) provide a measure of protection from the elements.

By direction of the Panel.

Linda A. Lafferty

Executive Director

October 24, 1990

Washington, D.C.

1. Bargaining-unit employees work in Buildings 1, 3, 4, 31, 58, 83, 86, and the Yard Health Clinic. The majority of such employees work in Buildings 31 and 86; only one works in the Clinic.

2. In Department of the Air Force MacDill Air Force Base. Florida and Local 153. National Federation of Federal Employees, Case No. 90 FSIP 58 (April 27, 1990), Panel Release No. 294, the Panel determined that "a total ban on smoking in buildings is consistent with [the Panel's] objective to ensure that employees have a healthful work environment free from the contamination of second-hand tobacco smoke." It reached its conclusion, in part, after considering expert testimony provided at a factfinding hearing in an earlier case that "the establishment of a de minimus risk level of environmental tobacco smoke ... would require an impractical level of ventilation which is 226 times greater than the recommended standard, i.e., the equivalent of a 'windstorm' for a typical office building 'where smoking was not restricted."' Department of Veterans Affairs Veterans Health Services and Research Administration Washinqton, D.C. and National VA Council. American Federation of Government Employees, AFL-CI0, Case No. 89 FSIP 198 (April 27, 1990), Factfinder's Report, n.3, Panel Release No. 294.

3. The Airflow 2000 filtration system was patented by CenterCore Incorporated. Literature from American Space Planners, Inc., the contractor from which the Employer purchased the workstations, states that the system uses a filtration material developed for cleanroom (sanitized) environments and cleans at 99.97 percent efficiency.

4.  The Health Consequences of Involuntary Smoking. A Report of the Surgeon General. DHHS Pub. No. (CDC) 87-8398. U.S. Department of Heath and Human Services, Public Health Service, Centers for Disease Control, Center for Health Promotion and Education, Office on Smoking and Health, 1986; and "Indoor Facts No. 5, Environmental Tobacco Smoke," U.S. Environmental Protection Agency, Office of Air and Radiation, June 1989.