United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

DECISION AND ORDER

    General Services Administration, Washington, D.C., (GSA or 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 the National Federation of Federal Employees (NFFE), Council of GSA Locals, Federal District 1, IAM&AW, AFL-CIO (Union).

    Following an investigation of the request for assistance, which concerns the smoking policy at the GSA National Office Building, the Panel determined that the dispute should be resolved through written submissions from the parties. Thereafter, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a Decision and Order. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.

    The Employer establishes policy for, and provides economical and efficient management of, Government property and records, including construction and operation of buildings; procurement and distribution of supplies; utilization and disposal of real and personal property; transportation, traffic, and communications management; and management of the Government-wide automatic data processing resources program. The Council of GSA Locals consists of 12 locals representing GSA employees nationwide. Approximately 1,300 unit employees, who are represented by NFFE Local 1705, work in the National Office Building and are affected by the dispute. Employees work in such positions as telecommunications specialist, procurement analyst, computer specialist, and secretary, and range in grade from GS-3 through GS-14. The parties’ national collective bargaining agreement (CBA) expired in August 2000; they are in the process of negotiating a successor agreement.

    Currently, smoking is permitted in two indoor designated smoking areas: Room 5112 on the fifth floor, and Room G-35I on the ground floor; and outdoors in the East and West courtyards, on rooftop balconies located at the northeast and southwest corners of the building,⁽¹⁾ and outside the building’s main entrances.

ISSUE AT IMPASSE

    The parties’ disagreement over the smoking policy for the National Office Building includes, among other things, whether there should be any designated indoor smoking areas, the number and location of designated outdoor smoking areas, and the extent of the smoking cessation program to be offered to unit employees who smoke.

POSITIONS OF THE PARTIES

1.  The Employer’s Position

    The Employer proposes to: Prohibit indoor smoking in the building by closing Room 5112 immediately, and Room G-35I by May 31, 2001; continue to permit smoking on the rooftop balconies located at the northeast and southwest corners of the building; and prohibit smoking "in all other areas inside and outside the building." In addition, the Employer, in "an effort to assist employees who wish to quit smoking," would make available a smoking cessation program which includes nicotine replacement therapy (NRT), using skin patches or nicotine chewing gum, and a one-time payment to employees for a 4-week supply of either skin patches or nicotine chewing gum.⁽²⁾

    Closing Rooms 5112 and G-35I as designated indoor smoking areas would establish a smoke-free environment at the National Office Building for Federal employees, members of the public, and children in GSA’s daycare center, by May 31, 2001, and protect them from the adverse effects of exposure to "environmental tobacco smoke (ETS)." Smoking has long been recognized as a major cause of death and disease, and the adverse health consequences of ETS are well-established.⁽³⁾ The parties’ CBA obligates the Employer to provide a "safe and healthful workplace." Prohibiting smoking indoors would assure compliance with Executive Order (E.O.) 13058, "Protecting Federal Employees and the Public From Exposure to Tobacco Smoke in the Federal Workplace,"⁽⁴⁾ and is consistent with the parties’ 1993 Memorandum of Understanding (MOU) under which the Union agreed that the rooms would serve as "transitional" indoor smoking areas to allow employees to adjust to a smoke-free workplace.⁽⁵⁾ Employees who smoke have had over 7 years in which to adjust to a smoke-free workplace.

    The East and West courtyards are not appropriate for smoking because they are used for handicap, executive, van-pool and car-pool parking: The only space available in the courtyards is "adjacent to doorways and near ventilation system air intake ducts." Smoking near doorways is unacceptable because employees and visitors would be subject to second-hand smoke when entering the building, and smoking near air intake ducts is strictly prohibited by E.O. 13058. Smokers would have a protected area in which to smoke: The two rooftop balconies have awnings which sufficiently protect smokers from the elements. In addition, because of the building’s historic designation, it would not be cost-effective or efficient to undertake the administrative process required to alter the balconies by erecting enclosures, as the Union’s alternative proposal would require.⁽⁶⁾ Finally, a smoking cessation program, including NRT for 4 weeks at the Employer’s expense, should encourage and enable smokers to quit the habit.

2.  The Union’s Position

    The Union proposes: (1) to maintain the status quo with respect to Room G-35I; that "smoking continue on the rooftops, 18^th & F and the 19^th & E Street(s) corridor; and that smoking continue in the courtyard (East and West)," but "away from entrances and exits." The Union also proposes that the Employer install tobacco disposal receptacles "on the outside where smokers will be able to dispose of their cigarettes." While the Union would agree to prohibit indoor smoking in Room 5112 immediately, if the Panel decides to close both designated smoking rooms, the Union proposes that "management allow smoking to continue on the rooftop areas and that protection [be] provided on the rooftops to protect the smokers from the elements."⁽⁷⁾ Finally, the Union proposes that the Employer provide a smoking cessation program for 60 days, treat time spent in the program as administrative time, and "absorb the cost" of any medication needed for smokers to successfully complete the program.

    The facts of this dispute warrant deviating from solutions the Panel has previously imposed regarding indoor smoking areas. Room G-35I is operated under negative pressure, contains commercial air purifiers and an exhaust fan that vents smoke directly to the outside of the building, and does not pose any health threat to non-smoking employees.⁽⁸⁾ Moreover, Room G-35I has four windows to allow fresh air to be circulated into the room, and is located in an area away from the main hallway and work areas. The closest employee in the area, located across the hallway, is a smoker who utilizes Room G-35I.

    In the alternative, if the Panel orders the closure of Room G-35I in addition to Room 5112, it is reasonable to require the Employer to erect enclosures on the existing rooftop balcony smoking areas to provide smokers with complete protection from the elements. The Union "agrees with management that smoking should be eliminated in doorways, entrances and exits," but the East and West courtyards are "open areas." Under E.O. 13058, the Employer is required to evaluate the need to restrict smoking in the courtyards. Because it failed to make such an evaluation, it has not demonstrated a need to prohibit smoking in the courtyards. Finally, a 60-day smoking cessation program should be adopted because the Employer offered to provide a smoking cessation program of that length during previous settlement discussions. In addition, a smoking cessation program which will allow employees to use administrative leave and which pays for the cost of their medical treatment will motivate them to quit smoking.

CONCLUSION

    Having reviewed the evidence and arguments presented by the parties, we are persuaded that a compromise solution, which incorporates several aspects of a tentative settlement agreement discussed by the parties during the investigation of the case, would strike an appropriate balance between the needs of smokers and non-smokers. Under the compromise, we shall order wording which, among other things: (1) prohibits smoking in Room 5112 and at the exterior doorways immediately, and in Room G-35I by May 31, 2001; (2) permits smoking in the East and West courtyards, at a reasonable distance from interior doorways, and on the rooftop balconies; and (3) requires the Employer to provide a 60-day smoking cessation program to employees that includes NRT and a one-time payment for an 8-week supply of skin patches or nicotine chewing gum.

    By agreeing in 1993 to establish indoor smoking rooms only on a "transitional" basis to help smokers adjust to a smoke-free workplace, we believe the Union essentially conceded that indoor smoking would be completely eliminated at some point in the future. In our view, the documented dangers of second-hand and side-stream smoke support completing the conversion to a smoke-free workplace at this time. As the Union points out, it is arguable that continuing to permit indoor smoking in Room G-35I would be consistent with E.O. 13058. There is nothing in E.O. 13058, however, which prevents the Employer from proposing, or the Panel from imposing, a higher standard to protect the health of Federal and contract workers, visitors, and children in the daycare center, particularly where the Union previously agreed that the indoor smoking areas in question were conditionally established to help smokers adjust to a smoke-free workplace.

    With respect to outdoor smoking areas, the Employer fails to support convincingly its contention that smoking in the courtyards is harmful to non-smokers or otherwise "not appropriate." In the absence of substantive evidence to that effect, we conclude that smoking should be permitted to continue in those spaces at a reasonable distance from interior building entrances for employees who will no longer be permitted to smoke in Room G-35I. In addition, in our judgment the canvass awnings already in place on the rooftop balconies provide smokers with sufficient protection from the elements. In this regard, among other things, fully enclosing portions of the rooftop balconies would have the negative effect of subjecting non-smokers who access the rooftop to second-hand smoke. Finally, to increase the likelihood that each employee who participates in NRT will stop smoking, we favor requiring the Employer to provide a one-time payment for an 8-week supply of skin patches or nicotine chewing gum.

    Pursuant to the authority vested in it by the Federal Service Labor-Management 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 adoption of the following:

1. Smoking is permitted on the rooftop balconies located at the northeast corner of the building, accessible from the 7100 corridor on the seventh floor, and the southwest corner of the building, accessible from the 7300 corridor on the seventh floor.

2. Designated indoor smoking area Room 5112 will be closed immediately. To provide a further transition period, the Employer will continue to permit smoking in indoor smoking area Room G-35I until May 31, 2001, at which time indoor smoking in the entire building is prohibited.

3. Smoking is prohibited at all exterior building entrances.

4. Smoking is permitted in the East and West courtyards, but is prohibited within 10 feet of any interior doorway or entrance to the building. The Employer will ensure that a sufficient number of tobacco disposal receptacles are maintained in the courtyard, but not within 10 feet of any interior doorways or entrances.

5. A smoking cessation program shall be provided for a period of 60 days, at no cost for interested employees, who shall be excused from work on official time, workload permitting, to attend smoking cessation classes that are scheduled during their work time. This program will include nicotine replacement therapy (NRT), using skin patches or nicotine chewing gum. The Employer will provide a one-time payment for each employee who participates in the NRT, for an 8-week supply of either skin patches or nicotine chewing gum. In addition, the program will include informational literature about the benefits of quitting smoking, and counseling as needed.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

February 21, 2001

Washington, D.C.

1. The rooftop terraces have large (approximately 20 by 25 feet) canvass awnings which provide overhead protection from the elements to a portion of the balconies.

2. The portion of the Employer’s final offer concerning its smoking cessation program was revised on February 7, 2001, following the Panel’s receipt of the parties’ written submissions and a post-jurisdictional telephone conference between the parties and a Panel representative, to include details on NRT.

3. In this regard, the Employer relies on a 1992 Environmental Protection Agency (EPA) study in which the EPA concluded that ETS is a human lung carcinogen which kills approximately 3,000 nonsmokers in the United States each year. The Employer also cites a 1997 California EPA report which linked ETS to increases in the risk of cervical and lung cancer, as well as sudden infant death syndrome. The Employer points out that its office has a child care center attended by children aged 4 weeks to 6 years.

4. E.O. 13058, issued by former President Clinton on August 9, 1998, prohibits the smoking of tobacco products in all interior space owned, rented or leased by the executive branch of the Federal Government, and outdoor areas in front of air intake ducts. By its terms, E.O. 13058 “does not apply to designated smoking areas that are enclosed and exhausted directly to the outside under negative pressure (with respect to surrounding spaces) sufficient to contain tobacco smoke within the designated areas.” E.O. 13058 also authorizes agency heads to evaluate the need to restrict smoking at doorways and in courtyards, and restrict smoking in those areas if warranted by the results of such an evaluation.

5. The MOU does not specify a time period for the transition.

6. The Employer asserts that the building received its historic designation and was listed in the National Register of Historic Places in 1986. It also states that, under the National Historic Preservation Act of 1966, GSA must take into account the effects of any proposed alterations on the building’s historic status, and afford the entity which provides guidance and advice on regulatory procedures governing alterations, the Advisory Council on Historic Preservation, a reasonable opportunity to comment on such undertakings.

7. In the post-submission conference call, the Union explained that its proposal seeks a “complete enclosure” for smokers under the existing awnings in the two rooftop smoking areas.

8. The Union cites a March 6, 2000, report by Enviro-Management, Inc. (EMI) in which EMI concluded that Room G-35I operates under negative pressure, occupants outside the room are protected from smoke, and the room does not pose a health threat to non-smoking employees.