17:0952(125)AR - Labor and AFGE Local 12 -- 1985 FLRAdec AR



[ v17 p952 ]
17:0952(125)AR
The decision of the Authority follows:


 17 FLRA No. 125
 
 U.S. DEPARTMENT OF LABOR 
 Agency 
 
 and 
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 12 
 Union
 
                                            Case No. 0-AR-762
 
                                 DECISION
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Paul J. Fassar, Jr. filed by both the Agency and the Union
 under section 7122(a) of the Federal Service Labor-Management Relations
 Statute and part 2425 of the Authority's Rules and Regulations.
 
    The dispute in this matter concerns an allegation that the Agency had
 failed to provide the grievant, who has an extreme sensitivity to
 tobacco smoke due to a medical condition, with a totally smoke-free
 working environment.  The Agency had moved the grievant's work station
 several times to different locations in an effort to accommodate her
 sensitivity, but for various reasons each location proved unsatisfactory
 to either the grievant or the Agency.  The grievant was ultimately
 assigned to a permanent work station in which she was supplied with a
 fan and surgical mask, partitions were erected and the room rearranged
 so that the nearest smoker was thirty feet away.  Grievant did not find
 this arrangement satisfactory, requested and was granted leave without
 pay and filed the subject grievance which proceeded to arbitration.  The
 original arbitrator, at the Union's request, issued an Interim Directive
 which, in effect, banned smoking in the grievant's work area.  This
 Interim Directive was not accepted by the grievant, the Union or the
 Agency and the original arbitrator withdrew from the case.  The
 Arbitrator in the award before the Authority determined that the Agency
 acted responsibly in dealing with the grievant and met its obligation
 under the parties' collective bargaining agreement and appropriate
 regulation to provide as nearly as possible a suitable work environment.
  However, the Arbitrator awarded the grievant backpay plus accrued
 benefits for the period between the date of the Interim Directive and
 the date the Agency rejected it, reasoning that during that period, the
 leave without pay was not under the grievant's control.  The Union and
 the Agency then filed the instant exceptions to this award.
 
    In its exceptions, the Union contends that the award is contrary to
 law, rule and regulation and the parties' collective bargaining
 agreement.  In support of its exceptions, essentially reiterating
 arguments made before the Arbitrator, the Union asserts:  (1) the
 Arbitrator erred in failing to find that the grievant was a handicapped
 employee pursuant to section 791 of the Rehabilitation Act, 29 U.S.C.
 701 et seq., and was therefore entitled to an accommodation of her
 handicap which was not provided by the Agency;  (2( the Arbitrator erred
 in finding that the Agency had fully discharged its obligation to the
 grievant under the Rehabilitation Act, Executive Order 12196,
 (pertaining to occupational safety and health programs for Federal
 employees) and implementing regulations, and a related provision of the
 parties' collective bargaining agreement;  and (3) the Arbitrator erred
 in failing to find that the Agency's failure to provide the grievant
 with a smoke-free environment constituted an unjustified and unwarranted
 personnel action within the meaning of the Back Pay Act, 5 U.S.C. 5596.
 The Union also asserts that the Arbitrator's failure to award all
 backpay and other relief sought by the grievant and to restore leave was
 arbitrary, capricious and unreasonable.  /1/
 
    However, the Authority concludes that the Union fails to establish
 the award is deficient as alleged.  Rather, it is clear that the Union
 is attempting to relitigate the merits of the case before the Authority
 and that the thrust of the Union's arguments constitutes nothing more
 than disagreement with the Arbitrator's findings of fact and reasoning
 and conclusions in resolving the dispute before him and with his
 interpretation and application of the parties' collective bargaining
 agreement.  Consequently, the exceptions do not provide a basis for
 finding the award deficient and are denied.  See, e.g., Department of
 the Air Force, Williams Air Force Base, Arizona and American Federation
 of Government Employees, Local 1776, 12 FLRA 509 (1983);  National
 Treasury Employees Union and U.S. Nuclear Regulatory Commission, 12 FLRA
 609 (1983).
 
    In its exceptions, the Agency contends, among other things, that the
 award violates the Back Pay Act, 5 U.S.C. 5596.  The Authority agrees.
 
    The Authority has uniformly held that for an award of backpay to be
 authorized under the Back Pay Act, there must be a determination that
 the employee was affected by an unwarranted personnel action and also a
 determination that such unwarranted action directly resulted in the
 withdrawal or reduction in the pay, allowances or differentials the
 employee would otherwise have earned or received.  E.g., Jefferson
 Barracks National Cemetery, St. Louis, Missouri and National Association
 of Government Employees, Local R14-116, 13 FLRA 703 (1984).  In terms of
 this case, the Arbitrator found only that during the pendency of the
 Interim Directive, the grievant was in a leave without pay status for
 reasons not under her control /2/ and that it was "fair and proper" to
 award wages and other accrued benefits for that period.  The Arbitrator
 plainly failed to make the findings necessary for an authorized award of
 backpay;  indeed, the Arbitrator found that the Agency met its
 obligation to provide the grievant with a suitable work environment.
 Consequently, the award of backpay plus accrued benefits is contrary to
 the Back Pay Act and is set aside.  /3/ Issued, Washington, D.C., May 9,
 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union also requests attorney fees.  In this regard, since the
 Arbitrator's award of backpay is set aside as contrary to the Back Pay
 Act, an award of attorney fees is unwarranted.  See Audie L. Murphy
 Veterans Administration Hospital, San Antonio, Texas and American
 Federation of Government Employees, AFL-CIO, Local No. 3511, 16 FLRA No.
 140 (1984).
 
 
    /2/ At the same time, the Arbitrator found that the Interim
 Directive, prohibiting smoking in the grievant's work room, failed for
 lack of acceptance by the grievant and the Union as well as the Agency.
 The Arbitrator attributed the Union's dissatisfaction to the Union's
 concern for the rights of employees who smoke, and the grievant's
 dissatisfaction