45:0457(36)AR - - VA Medical Center, Kerrville, TX and AFGE Local 2281 - - 1992 FLRAdec AR - - v45 p457



[ v45 p457 ]
45:0457(36)AR
The decision of the Authority follows:


45 FLRA No. 36

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

KERRVILLE, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2281

(Union)

0-AR-2191

DECISION

June 30, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator Benjamin M. Shieber filed by the Department of Veterans Affairs (VA) on behalf of its Kerrville, Texas, Medical Center (Medical Center) 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 did not file an opposition to the Agency's exceptions.

The Arbitrator determined that the Medical Center had failed to make available at its facilities a sufficient number of adequate outdoor smoking shelters, as required by the decision and order of the Federal Service Impasses Panel (the Panel) in Department of Veterans Affairs, Veterans Health Services and Research Administration, Washington, D.C. and National VA Council, American Federation of Government Employees, AFL-CIO, 89 FSIP 198 (1990) (Veterans Health Services and Research Administration), and as incorporated into the parties' collective bargaining agreement pursuant to section 7119(c)(5)(C) of the Statute.

As a remedy, the Arbitrator directed the Medical Center to (1) enclose two additional outdoor shelters that can accommodate twenty persons at one time and provide these two shelters with heating and ventilation equipment; and (2) redesignate part of the canteen as a smoking area until it provides the two additional adequate smoking shelters and gives three days notice that it has done so.

For the following reasons, we find that the exceptions fail to establish that the Arbitrator's award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The Medical Center is composed of two main buildings: a seven-story hospital building and a two-story nursing home care building. These two buildings are attached on two levels by covered corridors and are surrounded by a cluster of support buildings.

As part of a nationwide bargaining unit, the Union represents certain employees at the Medical Center, approximately 140 of whom are smokers. Although bargaining unit employees work throughout the Medical Center's facilities, at least seventy-five per cent of the bargaining unit employees who smoke at the Medical Center work in the hospital and nursing home care buildings. For purposes of bargaining at the national level, the Medical Center is represented by the VA and the Union is represented by the National Veterans Administration Council, American Federation of Government Employees, AFL-CIO (the Council). Agreements reached at the national level supersede agreements reached by the Medical Center and the Union on the local level.

In 1976, the Medical Center and the Union entered into an agreement that permitted smoking inside the Medical Center's facilities. In 1989, the Medical Center and the Union entered into a settlement agreement specifying which areas inside the Medical Center's facilities would be designated as smoking or nonsmoking areas. Subsequently, these two agreements between the Medical Center and the Union permitting smoking within the Medical Center's facilities were superseded by the decision and order of the Panel in Veterans Health Services and Research Administration, which resolved an impasse at the national level reached by the VA and the Council over the implementation of a proposal to establish a smoke-free policy in all of the VA medical center facilities, including the Medical Center.

In order to resolve the impasse, the Panel ordered the parties to adopt the VA's proposed smoke-free policy, but modified that policy to require the VA, as relevant in this case, to provide and maintain "reasonably accessible designated smoking areas (DSA) at each of its medical facilities where the smoke-free policy is implemented." Veterans Health Services and Research Administration, 89 FSIP 198 at 2. The Panel stated further that these designated smoking areas "shall be maintained until such time as the Employer provides reasonably accessible outside smoking shelter(s) . . . [that] shall accommodate smoking as well as protect the user against the local weather conditions." Id. The Panel also ordered that "[d]isputes with respect to the adequacy of the smoking shelter, and the accessibility of the shelter and interim DSAs, . . . be resolved through the negotiated grievance and arbitration procedures in the master agreement." Id. In addition, the Panel stated that "[f]acilities where a locally negotiated smoke-free policy agreement is in effect shall not be subject to this Order but, rather, shall continue to be covered by the terms of the local agreement." Id. at 2-3.

In Agency Circular 10-90-141, dated November 23, 1990, the Agency adopted the policy that "'at all facilities at which outdoor smoking shelters are available, no smoking is to be permitted by employees or visitors inside any medical center buildings. . . .'" Award at 6-7. In an attachment to that document, the Agency further stated that, in order to comply with the Panel's decision and order in Veterans Health Services and Research Administration, "'no facility having [a Council] bargaining unit may implement a smoke-free requirement for employees, i.e., eliminate indoor designated smoking areas, unless adequate and accessible outdoor smoking shelters are available . . . . Further, the provision of such shelters is mandatory.'" Award at 7. Additionally, in a directive dated December 28, 1990, the Southern Region of the VA provided instructions to the Medical Center that reiterated the policy adopting the Panel's decision and order in Veterans Health Service and Research Administration, and stated, among other things, that "'[t]he shelters provided shall accommodate smoking as well as protect the users against the local weather conditions.'" Award at 7.

On January 2, 1991, the Medical Center issued Policy Memorandum No. 00A-91-08, in an attempt to implement the Panel's decision and order in Veterans Health Service and Research Administration and relevant Agency directives. Policy Memorandum No. 00A-91-08 designated sixteen outdoor smoking shelter areas that the Medical Center considered adequate and accessible for use by employees, patients, volunteers and visitors and stated that, effective January 7, 1991, smoking would be prohibited inside any of the Medical Center's facilities. The Arbitrator labeled the sixteen outdoor smoking shelters listed in the policy memorandum as "[A]" through "[P]." Id. at 8-9.

On February 7, 1991, the Union filed a grievance requesting that the sixteen designated outdoor smoking shelters "'be made safe, heated, lighted, ventilated properly, comfortable with complete protection from the elements of weather and replete with communication lines to the Hospital proper.'" Id. at 9. The Union also sought the restoration of "'previously agreed[-]upon smoking areas; replacing all ash trays and removing all 'No Smoking' signs.'" Id. In addition, the Union sought to grieve certain other matters. When the grievance was not resolved, it was submitted to arbitration.

The Arbitrator framed the issues before him as follows:

1. Has [the Medical Center] failed to provide reasonably accessible and adequate outside smoking shelters at the Center as required by the order of the [Panel] in Case No. 89-FSIP 198 dated April 27, 1990?

2. If it has, what shall the remedy be?

Id. at 2.

The Arbitrator concluded that the Panel's decision in Veterans Health Services and Research Administration provided the contractual provisions that "the Arbitrator must interpret and apply in this case[.]" Id. at 10. The Arbitrator also concluded that the terms of the Panel's order "clearly placed within arbitral jurisdiction the power to decide 'disputes with respect to the adequacy of the smoking shelters . . . .'" Id. at 13.

First, the Arbitrator ruled that the Medical Center is subject to the Panel's decision and order in Veterans Health Services and Research Administration. Turning to the merits of the grievance, the Arbitrator ruled "that the number of shelters and their proximity to the areas in which the employees work require the conclusion that the [Medical Center] has provided 'reasonably accessible outdoor smoking shelters'" at its facilities. Id. at 12. In reaching this determination, the Arbitrator noted the absence of any evidence submitted by the Union establishing that any employee had been unable to find an accessible outdoor smoking shelter.

The Arbitrator ruled, however, that an insufficient number of the smoking shelters provided by the Medical Center were adequate, as required by Veterans Health Services and Research Administration, and that, therefore, the Medical Center had violated the Panel's order by completely eliminating all indoor designated smoking areas. In reaching this determination, the Arbitrator found that Veterans Health Services and Research Administration required a determination as to whether the outdoor smoking shelters made available by the Medical Center adequately provide protection to the user from the local weather conditions. The Arbitrator further stated that he agreed with the Agency's position that the Panel intended that the outdoor shelters provide only a "'measure of protection from the elements'" and not complete protection from local weather conditions. Award at 12 (quoting Department of Health and Human Services and American Federation of Government Employees, Local 2883, 91 FSIP 91 (1991)). The Arbitrator observed in this connection the Panel's statement "'that it has never been the Panel's intent in any of its decisions concerning outside designated areas to require the construction or modification of a structure that would provide complete protection from the elements.'" Award at 12-13 (quoting Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania and Local 3, International Federation of Professional and Technical Engineers, 91 FSIP 57 and 91 FSIP 59 (1991)). For this principle, the Arbitrator also cited, among others, the Panel's decision and order in Department of the Air Force MacDill Air Force Base, MacDill AFB, Florida and Local 153, National Federation of Federal Employees, 90 FSIP 117 (1990) (MacDill Air Force Base).

Based on evidence presented at the arbitration hearing regarding local weather conditions and the measure of protection provided the user from those conditions by the outdoor smoking shelters at the Medical Center, however, the Arbitrator found that the Medical Center was required to make available at its facilities a sufficient number of fully enclosed outdoor smoking shelters that are provided with heating and ventilation equipment and can accommodate twenty people at one time. The Arbitrator found that an insufficient number of outdoor smoking shelters at the Medical Center's facilities met this requirement. Consequently, the Arbitrator ruled that the Medical Center had failed to make available at its facilities adequate outdoor smoking shelters, as required by Veterans Health Services and Research Administration. As a remedy, the Arbitrator directed the Medical Center to "enclose at least two additional outdoor smoking shelters which can accommodate some 20 persons at one time and provide them with heating and ventilation equipment that makes them substantially similar to Shelters 'A,' 'B' or 'C.'" Award at 17. In addition, the Arbitrator ordered that "[u]ntil the additional two (2) outdoor smoking shelters are made adequate, part of the Canteen shall be redesignated as a smoking area." Id. In fashioning his remedy, the Arbitrator stated that the Activity "will be in full compliance with" the panel's order in Veterans Health Services and Research Administration and the implementing Agency directives "by enclosing any two (2) of [the] existing outdoor shelters 'D,' 'E,' 'F,' 'G,' or 'P', and providing them with heating and ventilating equipment that makes them substantially similar to Shelters 'A,' 'B', or 'C.'" Id. at 17-18. In a footnote, the Arbitrator noted that the parties could agree to enclose two outdoor smoking shelters other than those suggested by the Arbitrator.

Accordingly, in his award the Arbitrator, as relevant here, provided as follows:

The grievance is sustained in part and denied in part.

The Employer shall redesignate that section of the Canteen that was a designated smoking area pursuant to the November 28, 1989 Settlement Agreement between the parties as a designated smoking area.

The redesignated smoking area section of the Canteen shall be maintained as a designated smoking area only until such time as the Employer encloses any two of existing outdoor Shelters "D", "E", "F", "G", or "P", and provides them with heating and ventilating equipment that makes them substantially similar to Shelters "A", "B", or "C".

The Employer may implement its smoke free policy in the entire Canteen on three (3) days notice as soon as the enclosure of the two shelters and the provision of the heating and ventilating equipment for them has been accomplished.

Id. at 18-19.

III. Agency's Exceptions

The Agency maintains that the award is deficient because it fails to draw its essence from the collective bargaining agreement and because the Arbitrator exceeded his authority with respect to the remedy.

More specifically, the Agency contends that the award does not draw its essence from the parties' agreement because the Arbitrator failed to apply the proper standard to judge the adequacy of outside shelters. The Agency contends that the Arbitrator should have determined whether the shelters provide a "modicum of protection," rather than requiring the Medical Center "to expend funds to construct and/or modify structures so that smokers could be completely protected from the elements of weather." Exceptions at 7.

The Agency asserts that in MacDill Air Force Base the Panel clarified its original order in Veterans Health Services and Research Administration, and that both the original order "and MacDill, in so far as it incorporated the VA Order, have become integrated into the parties' collective bargaining agreement." Id. at 2. The Agency thus argues that Panel cases involving the parties to this dispute and other Panel cases "specifically clarifying or incorporating the VA Order are mandatory and must be followed." Id. The Agency's exception is based on its contention that although the original order in Veterans Health Services and Research Administration stated the standard of adequacy as "'protect[ion] . . . against the local weather conditions[,]'" MacDill Air Force Base specifically clarified this standard as a "'modicum of protection from the elements.'" Id. at 2. The Agency notes the Arbitrator's acknowledgement that the Panel had stated that it never intended in any of its decisions to require construction or modification of a structure to provide employees who smoke complete protection from the local weather elements for smokers, but asserts that, nonetheless, "he failed and refused to apply the clear meaning of the adequacy standard to this case." Id. at 6.

In addition to MacDill Air Force Base, the Agency cites a number of other decisions and orders of the Panel that it claims indicate the Panel's intention that outdoor smoking shelters provide only a modicum of protection to the user from local weather conditions.

The Agency states that the term "modicum" is known to mean "a little, a small amount, or a limited amount." Id. at 4 (emphasis deleted). Although it argues that the Arbitrator "misunder[stood] the entire interpretive process[]" by failing to use "modicum" as a standard, the Agency concedes that the term "measure" applied by the Arbitrator and the term "modicum" are interchangeable. Id. at 2. The Agency argues, however, that the "reasonable measure of protection from the elements" standard applied by the Arbitrator is an arbitrary invention. Id. at 3.

The Agency also contends that the Arbitrator exceeded his authority by directing that the Activity return to indoor smoking until the outdoor smoking shelters are modified and by directing that the Activity provide three days notice before returning to a smoke-free policy after the modification. The Agency asserts that the Arbitrator lacked authority to order a return to indoor smoking "for any purpose" because "his responsibility" was limited by the Panel to determining the adequacy and accessibility of the outdoor smoking shelters. Id. at 7. The Agency argues in this regard that even assuming that the Arbitrator had the authority to order a return to indoor smoking, "it would be patently absurd, and against the trend of public policy" to issue such an order "in a Medical Center [where] 16 outdoor [smoking] shelters exist, all of which are covered, and some of which are fully enclosed, ventilated and heated." Id. In addition, the Agency questioned a rationale that "could warrant jeopardizing patient, visitor, and employee health when so many alternate shelters exist[.]" Id.

The Agency also asserts that the Arbitrator arbitrarily and capriciously imposed on the Activity the requirement to provide a three-day notice before returning to a smoke-free policy. The Agency argues that, in view of the health risks of smoking, "three days notice is not necessary for a return to an already in-effect policy." Id.

IV. Analysis and Conclusions

We conclude that the Agency has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute.

A. The Award Does Not Fail to Draw Its Essence from the Collective Bargaining Agreements

In order for an award to be found deficient because it fails to draw its essence from the agreement, the party making the allegation must demonstrate that 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 the 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, for example, Defense Logistics Agency and American Federation of Government Employees, Local 1546, 44 FLRA 1015, 1019 (1992) (Defense Logistics Agency).

The Agency has failed to demonstrate that the Arbitrator's formulation and application of a standard to determine the adequacy of the Medical Center's outdoor smoking shelters is deficient under any of the tests set forth above. Rather, we conclude that the adequacy standard applied by the Arbitrator is reasonably related to the Panel's decision and order, which expressly required arbitral determination of all disputes relating to the adequacy of smoking shelters.*/ In reaching his determination that the shelters did not adequately "protect the user against the local weather conditions [,]" as mandated by the Panel, the Arbitrator took into account evidence presented at the arbitration hearing and the local weather conditions. In our view, this portion of the award does not disregard the agreement and is not implausible, irrational, or unconnected to the wording of that agreement. Accordingly, there is no basis to conclude that the award fails to draw its essence from the agreement.

We find no merit to the Agency's arguments that the award is deficient because it does not comply with the Panel's statements in later decisions that outdoor smoking shelters should provide a "modicum" of, but not complete, protection from local weather conditions. Significantly, those disputes involved different parties and dissimilar work situations from those involved in this case. Moreover, in reaching his determination that the Medical Center had not provided adequate outdoor smoking shelters as required by Veterans Health Services and Research Administration, the Arbitrator did examine the language in MacDill Air Force Base and other decisions of the Panel concerning outdoor smoking shelters. And, as the Agency acknowledges, the word "measure," which the Arbitrator used in stating the Panel's own interpretation of the adequacy standard, is virtually interchangeable with the word "modicum." Nonetheless, he ultimately determined that, in the circumstances of this case, the Panel's order required a degree of protection that the existing shelters at the Medical Center did not have. The Panel's order clearly leaves the resolution of such issues to the arbitral process. In disagreeing with the result reached by the Arbitrator, the Agency is attempting to relitigate the case before the Authority. Such an exception does not provide a basis for finding an award deficient. U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 42 FLRA 322, 327 (1991). Additionally, to the extent the Agency is attempting to argue the merits of the order and decision of the Panel in Veterans Health Services and Research Administration, such arguments are not properly before the Authority in this proceeding. U.S. Department of Defense, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina and American Federation of Government Employees, Local 1770, 42 FLRA 775, 782 (1991).

B. The Arbitrator Did Not Exceed His Authority

An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted to arbitration. American Federation of Government Employees Local 1923, AFL-CIO and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 911, 918 (1992) (Health Care Financing Administration); U.S. Department of the Treasury, Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania and National Treasury Employees Union, Chapter 71, 41 FLRA 710, 723 (1991) (Internal Revenue Service). In the absence of a stipulation by the parties, arbitrators are accorded substantial deference in the formulation of the issues to be resolved in a grievance. For example, Health Care Financing Administration, 44 FLRA at 918. Although Arbitrators have great latitude in fashioning remedies, an arbitrator exceeds his authority by issuing an affirmative order that exceeds the scope of the matter submitted to arbitration. U.S. Department of Veterans Affairs Medical Center, St. Albans, New York and American Federation of Government Employees, Local 1988, 37 FLRA 1092, 1095 (1990). See also Internal Revenue Service, 41 FLRA at 723-24 (1991); U.S. Department of Housing and Urban Development, Los Angeles Area Office, Region IX, Los Angeles, California and American Federation of Government Employees, Local 2403, AFL-CIO, 35 FLRA 1224, 1229 (1990).

The Agency fails to establish that the Arbitrator exceeded his authority by addressing an issue that was not before him or by issuing an order that went beyond the issues before him. The issues, as set forth by the Arbitrator, were whether the Activity had failed to provide reasonably accessible and adequate outside smoking shelters at its facilities as required by the decision and order of the Panel in Veterans Health Services and Research Administration, and if not, what remedy was applicable. The Arbitrator ruled that the Activity had failed to make available at its facilities adequate outdoor smoking shelters as required by the decision and order of the Panel in Veterans Health Services and Research Administration. Accordingly, as part of the remedy, the Arbitrator directed the Activity to return to indoor smoking until it modifies the outdoor smoking shelters and provides three days notice.

We find that the Arbitrator had the authority to award this remedy. We note in this regard that the decision and order of the Panel in Veterans Health Services and Research Administration expressly provides for arbitral resolution of all disputes concerning the adequacy of smoking shelters, and contains no limitations on the Arbitrator's remedial authority in that regard. Furthermore, the Arbitrator's determination that the issue of a remedy in this case was properly before him, in the absence of a stipulation by the parties, is entitled to great deference. See Health Care Financing Administration, 44 FLRA at 919. Moreover, as we have established above, arbitrators have great latitude in fashioning remedies. Requiring the Activity to return to indoor smoking until outdoor smoking shelters are modified and to provide a specified notice upon returning to a smoke-free policy after the modification was responsive to the issues framed by the Arbitrator and to his conclusion that the Activity had not made available at its facilities adequate outdoor smoking shelters. Health Care Financing Administration, 44 FLRA at 918; Internal Revenue Service, 41 FLRA at 724. Accordingly, we reject the Agency's contention that the Arbitrator exceeded his authority by directing the Activity to return to indoor smoking until outdoor smoking shelters are modified and it has provided three days notice to the Union.

We find no merit in the Agency's arguments in support of its contention that because a medical facility is involved in this case, this portion of the award is "patently absurd," and "against the trend of public policy." Exceptions at 7. The Arbitrator was simply enforcing the order of the Panel in Veterans Health Services and Research Administration, which provides that designated smoking areas "shall be maintained until such time as the [Agency] provides reasonably accessible outside smoking shelter(s) . . . [which] shall accommodate smoking as well as protect the user against the local weather conditions." 89 FSIP 198 at 2. We find nothing either against public policy or absurd about an award that requires the parties to a collective bargaining relationship to abide by the results of a dispute submitted to the Panel. Furthermore, this portion of the award is an interim measure, lasting only until the Activity effectuates the requisite adjustments. We also reject the Agency's contention that the requirement of a three-day notice before returning to a smoke-free policy is arbitrary and capricious. In our view, the Arbitrator acted within his remedial discretion in determining that the Union and employees should have a short notice period before again being subject to the new policy. Thus, we find that the Agency is merely disagreeing with the Arbitrator's ruling that the Activity had failed to comply with the decision and order of the Panel in Veterans Health Services and Research Administration, as well as his remedy enforcing that order. Such arguments constitute disagreement with the Arbitrator's interpretation and application of the collective bargaining agreement and with his findings and provide no basis for finding the award deficient. American Federation of Government Employees, Local 3258 and U.S. Department of Housing and Urban Development, Boston, Massachusetts, 38 FLRA 600, 606 (1990).

V. Decision

The Agency's exceptions are denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ As the Authority has recognized, the Panel's procedures are part of the collective bargaining process. Department of Health and Human Services, Health Care Financing Administration, 39 FLRA 120, 132 (1991), affirmed sub nom. Department of Health and Human Services, Health Care Financing Administration v. FLRA, No. 91-1068 (4th Cir. Dec. 26, 1991). Moreover, under section 7119(c)(5)(C) of the Statute, "any final action of the Panel . . . shall be b