United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

    Local 1709, American Federation of Government Employees, AFL-CIO (Union) and the Department of the Air Force, Dover Air Force Base, Dover AFB, Delaware (Employer) jointly filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider an negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119.

    Following investigation of the request for assistance, the Panel determined that the impasse should be resolved on the basis of an informal conference by telephone with a Panel representative. The parties were advised that if no settlement were reached, the representative would report to the Panel on the status of the dispute, including the parties’ final positions and the representative’s recommendation for resolving the matter. After considering the report, 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 by telephone on July 29, 1999, but the parties were unable to resolve the dispute. Ms. Walsh has reported to the Panel in writing, and it has now considered the entire record.⁽¹⁾

    The Employer maintains C-5 aircraft which airlift passengers and cargo, such as tanks and trucks, worldwide for the Department of Defense. The Union represents 666 bargaining-unit employees who work as accounting technicians, aircraft mechanics, civil engineers, painters, and in clerical, supply, child development, youth, and recreational services positions. The parties’ collective bargaining agreement (CBA) was to have expired on June 15, 1998, but its terms will continue until separate successor agreement negotiations currently underway are completed, and a new agreement is implemented.

    The parties’ essentially disagree over whether smokeless tobacco products should be prohibited from the workplace, in Air Force vehicles, and on Air Force or contract aircraft.

1. The Employer’s Position

    The Employer proposes that it be permitted to implement Air Force Instruction (AFI) 40-102 prohibiting tobacco use in the workplace, Air Force vehicles, and on Air Force and contract aircraft.⁽²⁾ Thus, its current policy prohibiting the smoking of tobacco products, except in designated tobacco use areas, would be expanded to preclude the use of smokeless tobacco.⁽³⁾ Employees wishing to use smokeless tobacco would do so in the same designated areas used by smokers.⁽⁴⁾

    The adoption of its proposal would further the policy of the Air Force (and Dover Air Force Base) of discouraging the use of all tobacco products "because the ill effects of tobacco use are well documented." The Employer’s concern "is to protect the health of all workers." Restricting the places and "hopefully the opportunities to use smokeless tobacco products" will help management "towards the goal of reducing the number of smokeless tobacco users." Any adverse affect that the implementation of its proposal would have on the small number of bargaining-unit employees who currently use smokeless tobacco at the workplace would be outweighed by health benefits to a far greater number of non-users. Moreover, the existing designated tobacco use areas provide sufficient accommodation for affected employees because they provide a measure of protection from the elements, and are reasonably accessible to the workplace. Since civilian employees and military personnel work together, the adoption of AFI40-102 also would protect young recruits from exposure to smokeless tobacco use. Finally, no Air Force bases contacted by the Employer reported problems with, or objections to, prohibiting the use of smokeless tobacco at the workplace.

2. The Union’s Position

    The Union proposes that "all conditions remain status quo regarding the use of smokeless tobacco." In this regard, it surveyed the bargaining unit in January 1999 regarding smokeless tobacco use. Of the 666 unit employees, 273 responded to the survey. Ten employees answered that they used smokeless tobacco in the workplace,⁽⁵⁾ and 74 employees indicated that they are affected by smokeless tobacco use.⁽⁶⁾ This shows "that the usage of smokeless tobacco is so small in numbers that the hazard to others is very, very low." In its view, only through proper education and enforcement of the current regulations will the problem of addiction be addressed and "the workforce become more healthy." Rather than addressing the "true problem" of addiction, "management merely wants to move it outside."

    Having carefully considered the arguments and evidence presented in this case, we shall resolve the parties’ impasse by ordering the Employer to withdraw its proposal. It is well established that in Panel proceedings the party attempting to change the status quo generally bears the burden of demonstrating why its proposal should be adopted. In this case, the Employer’s primary reason for implementing a change in a practice that a small number of bargaining-unit employees have enjoyed, apparently for many years, is "to protect the health of all workers." There is no credible evidence in the record, however, that the use of smokeless tobacco at Dover Air Force Base, either in the workplace, in Air Force vehicles, or on Air Force or contract aircraft, has presented a health hazard to anyone but the users of the product.⁽⁷⁾ Moreover, it appears that employees who fail properly to dispose of "byproducts" caused by the use of smokeless tobacco are subject to disciplinary action.

    With respect to whether the Panel should adopt the Employer’s proposal because it would discourage smokeless tobacco users from continuing to harm themselves, there is no question that the ill effects of tobacco use, particularly smokeless tobacco, are well documented.⁽⁸⁾ Nevertheless, we are skeptical that the means the Employer has chosen to achieve its goal of reducing the number of smokeless tobacco users will yield the desired result. Tobacco is a highly addictive substance in any form. In our view, limiting access to smokeless tobacco is just as likely to encourage users to switch to cigarettes or cigars during the workday to satisfy their craving for nicotine as it is to reduce their number. In any event, placing smokers and smokeless tobacco users in the same designated tobacco use areas would expose the latter to second-hand smoke, and undermine the Employer’s stated interest in protecting employees’ health. For these reasons, we conclude that the Employer has failed to demonstrate the need for its proposal.

    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:

    The Employer shall withdraw its proposal.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

September 21, 1999

Washington, D.C.

1.Ms. Walsh left the Panel’s staff before the case was presented at its next scheduled meeting.

2.AFI40-102 was issued on August 1, 1998, superceding a previous instruction entitled Tobacco Use in the Air Force (1994).

3.Current designated tobacco use areas, which are located throughout the base, vary in size and form, from a picnic table to a gazebo, but most have an overhang or overhead protection. They also include signs and receptacles for disposing of tobacco products.

4.Employees are entitled to one 15-minute break per 4 hours of work and a lunch period, which varies from 20 minutes to 1 hour, depending on the work group.

5.Of the 10 employees who use smokeless tobacco at work, 7 indicated that they work outside, 2 indicated that they work both inside and outside, and 1 employee stated that he or she works inside. The employees indicated their work locations as follows: flight line (1), civil engineering (1), test cell (1), driver (1), pallet-building (1), maintenance hanger (4), office worker (1).

6.Of the 74 who stated that they were affected by smokeless tobacco use, according to the Union, “the reasons fall into the following categories: 1. Container not used; 2. Container left lying around; 3. Makes them sick.”

7.Significantly, the Employer does not argue, nor is it evident from the record, that the use of smokeless tobacco has interfered with the installation’s ability to perform its mission.

8.In this connection, the Panel has consistently encouraged parties to continue voluntary efforts to combat the adverse effects of smoking on the health of employees by persuading smokers, through such means as smoking cessation programs, to abandon the habit. It is our understanding that the Employer will offer smoking cessation classes, one on duty time, for those interested in quitting the habit.