United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

      The National Joint Council of Food Inspection Locals, American Federation of Government Employees, AFL-CIO (Union) and the Department of Agriculture (USDA), Food Inspection and Safety Service, Washington, D.C. (FSIS or Employer) filed a joint request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119.

    After investigation of the request for assistance, which concerns a nationwide smoking policy, the Panel directed the parties to participate in an informal conference with a Panel representative for the purpose of resolving the outstanding issues. 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 offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the matter, including the issuance of a binding decision.

    Pursuant to this procedural determination, Panel Representative (Staff Attorney) Harry E. Jones met with the parties on August 14, 1997, at the Panel’s offices in Washington, D.C. At the conclusion of the proceeding the parties remained at impasse over the two issues in dispute. Mr. Jones has reported to the Panel, and it has now considered the entire record.

    The Employer’s mission is to ensure that meat, poultry, and egg products are safe, wholesome, and accurately labeled; it enforces several statutes which require Federal inspection and regulation of those products. The Union represents a nationwide bargaining unit which consists of approximately 6,400 food inspectors who conduct inspections at approximately 6,000 private sector establishments, referred to as Inspection Office (IO) field offices; they range in grade from GS-5 through -11. Some of the inspectors are assigned to one specific location (e.g., a processing plant or slaughterhouse), while others, who are on "patrol" assignments, cover a number of different sites.⁽¹⁾ The parties are governed by the terms of a master collective bargaining agreement which was rolled over for a 3-year period in October 1996.

    The parties disagree over whether smoking should be prohibited in: (1) buildings and facilities (or portions thereof) owned, leased, or occupied by FSIS personnel, including those portions of privately-owned establishments which are designated for the use of food inspectors;⁽²⁾ and (2) vehicles (either USDA-owned or leased) which are in the control of FSIS or its employees.

1. The Employer’s Position

    The Employer proposes the following wording:

The smoking of any tobacco products in any buildings and facilities (or portions thereof) owned, leased, or occupied by [USDA, FSIS] personnel is strictly prohibited. Smoking is also prohibited in USDA owned and GSA or commercially leased vehicles which are leased for more than 60 days within the custody and control of USDA, FSIS and/or its employees.

Its proposal would ensure that nonsmokers are protected from the harmful effects of second-hand smoke. In addition to being consistent with the requirements of Departmental Regulation No. 4400.6, issued on December 16, 1996, it also comports with numerous Panel decisions in which parties have been directed to eliminate indoor smoking,⁽³⁾ as well as with Panel decisions which ban smoking in Government vehicles.⁽⁴⁾ The current policy, on the other hand, which the Union proposes to maintain, permits smoking policy at each FSIS location to be decided by a vote of the employees assigned to work there. Although this arrangement theoretically permits nonsmokers to veto smoking in FSIS controlled space and/or vehicles, it has resulted in complaints from nonsmokers who have been uncomfortable in exercising their veto power. It also fails to acknowledge that second-hand smoke has harmful effects on both smokers and nonsmokers. For these reasons, the Employer urges the adoption of its proposal.

2. The Union’s Position

    The Union’s proposal is as follows:

The decision to permit smoking in [IO] field offices, [IO controlled vehicles], and IO controlled break rooms in official establishments is to be based on the vote of the assigned employees. Smoking is not permitted when only one IO employee assigned to the subject location votes against it. When plant management has a designated area(s) for their employees to smoke and IO employees are permitted access to it, IO employees may smoke in such areas. This situation is not subject to the IO employee voting requirement.

Its proposal, which represents the status quo, provides a balanced approach to smoking policy by allowing unit employees to decide the practice at each individual worksite. The proposal protects the rights of nonsmokers by, in essence, giving them the authority to determine the smoking policy at each installation. In this regard, the Employer exaggerates the number of complaints that have been received from nonsmokers concerning the current arrangement. The portion of its proposal which allows FSIS employees to use designated smoking areas in private establishments also is reasonable, and is necessary to clarify that the smoking policy applies only to certain FSIS-occupied space.

    Having carefully reviewed the record in this case, we shall order the adoption of a modified version of the Employer’s proposal to resolve the parties’ impasse. In our view, the days of societal debate regarding whether second-hand smoke has an adverse impact on the health of nonsmokers and smokers are over. For this reason, we are persuaded that it would be inappropriate to continue to permit FSIS employees to determine policy regarding such a serious health-and-safety issue through a process whereby workplace pressure, whether real or perceived, may be brought to bear on nonsmokers to yield to the desires of smokers. Nevertheless, we believe the Employer’s proposal should be modified to include wording specifying that IO employees may smoke in areas, where they have been permitted access, that the private employer has designated as smoking areas for its employees. This should be of benefit to FSIS employees by clarifying the scope of the smoking policy. It also provides a reasonable accommodation to smokers while maintaining the rights of nonsmokers to a smoke-free environment. Finally, the additional wording appears to be fully consistent with President Clinton’s recent Executive Order 13058, issued during the pendency of this dispute.⁽⁵⁾

    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 adoption of the following wording:

The smoking of any tobacco products in any buildings and facilities (or portions thereof) owned, leased, or occupied by United States Department of Agriculture (USDA), Food Safety and Inspection Service (FSIS) personnel is strictly prohibited. Smoking is also prohibited in USDA owned and GSA or commercially leased vehicles which are leased for more than 60 days within the custody and control of USDA, FSIS and/or its employees. However, when a private employer has a designated area or areas for its employees to smoke and IO employees are permitted access to those areas, IO employees may smoke in such areas.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

September 16, 1997

Washington, D.C.

1.The work assignments break down in the following manner: In 4 percent of the plants ("the Big 300"), there are 10 or more inspectors assigned; in 1 percent of the plants, there are 6 to 10 inspectors assigned; in 35 percent of the plants, there are 2 to 5 inspectors assigned; and in 59 percent of the plants, there is a single inspector assigned. Generally speaking, the one-inspector assignments are processing plants or "small kill" slaughter operations; the larger slaughter operations are the plants that have multiple inspectors on site.

2.In accordance with USDA regulations, the inspectors are provided space in private sector establishments which is used for office space, changing clothes, and eating.

3.See, e.g., Department of the Air Force, Eielson Air Force Base, Eielson AFB, Alaska and Local 1836, American Federation of Government Employees, AFL-CIO, Case No. 95 FSIP 141 (September 27, 1995), Panel Release No. 379.

4.See, e.g., Department of the Army, Headquarters 10th Mountain Division and Fort Drum, Fort Drum, New York and Local R2-61, National Association of Government Employees, SEIU, AFL-CIO, Case No. 95 FSIP 95; Department of the Army, Headquarters 10th Mountain Division and Fort Drum, Fort Drum, New York and Local 400, American Federation of Government Employees, AFL-CIO, Case No. 95 FSIP 117; and Department of the Army, Headquarters 10th Mountain Division and Fort Drum, Fort Drum, New York and Local F-105, International Association of Firefighters, AFL-CIO, Case Nos. 95 FSIP 114 and 132 (September 27, 1995), Panel Release No. 379.

5."Protecting Federal Employees and the Public from Exposure to Tobacco Smoke in the Federal Workplace," 62 Fed. Reg. 43,449 (August 9, 1997).