35:1259(144)AR - - GSA, Region VII, Fort Worth, TX and AFGE Council 236 - - 1990 FLRAdec AR - - v35 p1259



[ v35 p1259 ]
35:1259(144)AR
The decision of the Authority follows:


35 FLRA No. 144

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

GENERAL SERVICES ADMINISTRATION

REGION VII

FORT WORTH, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

COUNCIL 236

(Union)

0-AR-1748

DECISION

May 31, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator Milden J. Fox, Jr. The Arbitrator concluded that the Agency's Memorandum dated September 7, 1988, revoking all the designated smoking areas in the Agency's Contracts Division, constituted "an arbitrary action without [U]nion notification and/or impact and implementation bargaining." Award at 18.

The Agency filed exceptions to the award under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

For the following reasons, we conclude that the Agency has not demonstrated that the award violates applicable regulations, fails to draw its essence from the parties' collective bargaining agreement, or is based on a nonfact. We agree with the Agency, however, that the Arbitrator exceeded his authority by extending relief to nonunit employees. Accordingly, we will modify the portions of the Arbitrator's award that encompass nonunit employees.

II. Background and Arbitrator's Award

The Agency designated smoking areas in the Contracts Division on the 11th floor of the Federal Office Building. Two employees in that Division furnished physicians' statements concerning "their adverse health conditions in cigarette smoking atmosphere." Award at 9. Subsequently, the Division Director issued a memorandum dated September 7, 1988, which provided, in pertinent part:

Because our population of smokers has grown, we are no longer able to provide a smoke-free environment for nonsmokers as prescribed by the regulations.

Therefore, it has become necessary to revoke all designated smoking areas within the Contracts Division. This is effective immediately.

Id.

The memorandum was issued without any discussion with the Union, and the Union did not receive a copy of the memorandum. According to the Arbitrator, "[t]he smokers, in order to smoke, had to go to other Division areas or to designated general smoking areas on other floors of the building." Id. at 10. The Union filed a grievance over the issuance of the memorandum and, when the matter was not resolved, it was submitted to arbitration.

The parties stipulated to the following issues:

1. Whether the management letter of September 7, 1988, constituted an arbitrary action without union notification and/or impact and implementation bargaining.

2. Whether the management letter . . . was in accordance with applicable law, rule, government-wide regulation or contract.

Id. at 4.

The Arbitrator found first that "[s]moking or nonsmoking is a condition of employment." Id. at 16. The Arbitrator also found that because "the smoking-nonsmoking issue" is a condition of employment, the Agency, at the regional level or below, was obligated under the parties' master agreement as well as a Memorandum of Understanding (MOU), to notify the Union and negotiate regarding the smoking policy in the Contracts Division. Id. at 17-18. The Arbitrator noted that the ruling on the first issue made "question number two a moot issue since the ruling on question number one really included the violations of rule, government-wide regulation and Contract." Id. at 18.

The Arbitrator concluded that "the management letter of September 7, 1988 constituted an arbitrary action without [U]nion notification and/or impact and implementation bargaining." Id. The Arbitrator sustained the grievance and ordered the Agency to:

rescind the memorandum of September 7, 1988 and notify the Union of future changes in working conditions per Article 8 of the MLA. The Agency is directed to allow the Union to bargain on the replacement directive for the memorandum of September 7, 1988.

The parties are directed, in carrying out the above, to exercise jointly their duties to bargain in good faith according to applicable laws, rules, regulations and collective bargaining agreement (MLA). Until such time as the parties reach a mutual agreement through negotiations and/or a F[ederal] S[ervice] I[mpasses] P[anel] decision is issued, the parties are directed to cooperate in minimizing the health hazards to both smokers and nonsmokers.

Since the division does not have any general use smoking areas and none are available on the 11th floor, the Agency is directed to allow the division smokers free access to all general smoking areas during and after normal duty hours to fully utilize their allocated break time (break and lunch). Since these general use smoking areas are not in the immediate vicinity of the division's allocated work space on the 11th floor, the travel time to and from these general use smoking areas shall not be counted against the employee break time.

Id. at 19.

III. Positions of the Parties

A. Agency's Exceptions

The Agency asserts that the Arbitrator's award is deficient because:

1. It violates Federal Property Management Regulation 101-20.105-3 by requiring management "to allow smoking in work areas when such smoking has been shown to impinge on the health of those who do not smoke." Exceptions at 10.

2. It violates 29 C.F.R. § 1613.704(a), the Rehabilitation Act of 1973, because it violates two handicapped employees' right to reasonable accommodation. Id.

3. It does not draw its essence from the parties' collective bargaining agreement in that the award requires the regional parties to negotiate on work station smoking, a subject which, according to the Agency, is a "prohibited area for regional bargaining as determined by the national parties in the Memorandum of Understanding on Smoking Policy." Id.

4. It is based on a nonfact in that the Arbitrator incorrectly found that "the smokers in the Contracts Division did not have access to a general use smoking area." Id.

5. It is based on a nonfact because "under the terms of the National Memorandum of Understanding on Smoking Policy region 7 management has a unilateral right to designate general use smoking areas." Id.

6. The Arbitrator exceeded his authority because the award "requires cancellation of a letter that applied to persons outside the bargaining unit[.]" Id.

B. Union's Opposition

The Union asserts that the Arbitrator's award does not violate law, rule, or regulation. According to the Union, the negotiability of smoking in the workplace and the statutory duty to notify the Union and bargain over changes in working conditions is well established. The Union argues that the Agency's exceptions provide no basis for setting aside the award.

IV. Analysis and Conclusions

A. The Award is Not Contrary to 41 C.F.R. §101-20.105-3 or 29 C.F.R. § 1613.704(a)

The Agency argues that the Arbitrator's award violates 41 C.F.R. § 101-20.105-3 because it "requir[es] management to allow smoking in work areas when such smoking has been shown to impinge on the health of those who do not smoke." Exceptions at 10. Contrary to the Agency's assertion, we find that the Arbitrator's award does not require management to allow smoking in work areas and that, therefore, the award does not violate 41 C.F.R. § 101-20.105-3.

41 C.F.R. § 101-20.105-3, in general, establishes requirements for controlling smoking in GSA-controlled buildings and facilities. The regulations recognize the health hazards of passive smoking on nonsmokers, and require that smoking be kept to a minimum in areas where there are nonsmokers. The regulations require that agency heads designate smoking areas in Federal buildings, taking into consideration the health issues involved, and giving appropriate consideration to the views of the employees affected or their representatives. See Internal Revenue Service, Los Angeles District v. FLRA, No. 88-1550 (D.C. Cir. May 1, 1990), slip op. at 4-5, for a discussion of these regulations.

We conclude that this exception is based on a misinterpretation of the Arbitrator's award. Nothing in the award requires the Agency to allow smoking in areas which have not been designated already as smoking areas by the Agency. We note, in this regard, that the Arbitrator directed the Agency to allow smokers in the Contracts Division (on the 11th floor) access to designated smoking areas on other floors, until such time as an agreement is reached concerning designated smoking areas on the 11th floor, because there are no general use smoking areas on the 11th floor. The Union acknowledges that the award does not require the Agency to allow smoking on the 11th floor until an agreement to that effect is reached between the parties. See Union's Opposition at 2 ("There are no general use smoking areas on the eleventh floor. [The Arbitrator's] award allows employees to use other floors until such time as negotiations produce an agreed to resolution.").

Consistent with the plain wording of the Arbitrator's award, and the Union's interpretation of it, we find that the award does not require the Agency to allow smoking in work areas. Accordingly, the award does not conflict with 41 C.F.R. § 101-20.105-3.(*)

We also find that the Agency has failed to establish that the award violates 29 C.F.R. § 1613.704(a), which requires, in general, that agencies make reasonable accommodations for qualified handicapped employees. As noted above, the Arbitrator's award does not permit employees to smoke in work areas. The award directs the Agency to allow employees who smoke access to designated smoking areas in other floors until the parties' bargaining over designated smoking areas on the 11th floor is completed. The Agency has not demonstrated that this interim measure is inconsistent with 29 C.F.R. § 1613.704(a). Therefore, we find that the award does not violate 29 C.F.R. § 1613.704(a).

B. The Award Draws its Essence from the Agreement

An award is deficient because it fails to draw its essence from the agreement if the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See Illinois Air National Guard, 182nd Tactical Air Support Group and The Association of Civilian Technicians, Illinois Chapter 34, 34 FLRA 591, 593 (1990).

The Agency has failed to demonstrate that the award is deficient under any of the tests outlined above. The Agency asserts that, pursuant to the parties' Memorandum of Understanding, "work station smoking . . . is a prohibited area for regional bargaining[.]" Exceptions at 10. As noted previously, however, the Arbitrator's award does not require the Agency to allow smoking in work areas or, as relevant here, to bargain over smoking at work stations. Instead, the award requires the parties to bargain over designated smoking areas. See, for example, Award at 18 ("[T]he Division Director . . . failed to establish a designated smoking area on her floor or coordinate with the other division(s) on her floor to designate a smoking area."). In this regard, under the parties' Memorandum, "[r]egional [p]arties are authorized to negotiate on . . . [t]he location of permanent general use smoking areas." Exceptions at 7.

We find that the Agency's assertion that the award fails to draw its essence from the parties' Memorandum of Understanding on Smoking Policy constitutes mere disagreement with the Arbitrator's interpretation and application of the parties' agreement. Accordingly, the exception provides no basis for finding the award deficient. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 576 (1990).

C. The Award Is Not Based on Nonfacts

In order for an award to be found deficient on the ground that it is based on a nonfact, the party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. See American Federation of Government Employees, Local 1568 and U.S. Department of Housing and Urban Development, 34 FLRA 630, 633 (1990).

The Agency's assertions that (1) the Arbitrator incorrectly found that the smokers in the Contracts Division did not have access to a general use smoking area, and that (2) under the terms of the MOU management has a unilateral right to designate general use smoking areas, do not demonstrate that the award is based on nonfacts. In particular, the Agency has neither alleged nor established that either of the alleged nonfacts is a central fact underlying the award. In our view, the Agency's exceptions constitute mere disagreement with the Arbitrator's findings of fact and his interpretation and application of the parties' agreement. See Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 34 FLRA 503, 505 (1990). Accordingly, these exceptions provide no basis for finding the award deficient.

D. The Arbitrator Exceeded His Authority

An arbitrator exceeds his or her authority when he or she issues an affirmative order that goes beyond the scope of the matter submitted to arbitration. See, for example, United States Army, Academy of Health Sciences, Fort Sam Houston, Texas and National Federation of Federal Employees, Local No. 28, 34 FLRA 598, 600 (1990). An arbitrator also exceeds his or her authority when he or she awards relief to persons who did not file a grievance on their own behalf or who did not have the Union file grievances for them. See id.

The Arbitrator ordered the Agency to rescind the memorandum of September 7, 1988, and directed the Agency to allow smokers access to designated smoking areas on other floors. This order a