46:0097(11)AR - - VA Medical Center, Kerrville, TX and AFGE, Local 2281 - - 1992 FLRAdec AR - - v46 p97



[ v46 p97 ]
46:0097(11)AR
The decision of the Authority follows:


46 FLRA No. 11

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

(45 FLRA 457 (1992))

ORDER DENYING MOTION FOR RECONSIDERATION

October 16, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for reconsideration of the Authority's decision in 45 FLRA 457 (1992). The Union did not file an opposition to the Agency's motion. Because the Agency fails to establish that extraordinary circumstances exist which warrant reconsideration of our decision, we will deny the motion.

II. Arbitrator's Award and the Decision in 45 FLRA 457

The Arbitrator held that the Agency's Medical Center had failed to make available at its facilities a sufficient number of adequate outdoor smoking shelters, as required by a decision and order of the Federal Service Impasses Panel (the Panel) and as incorporated into the parties' collective bargaining agreement pursuant to section 7119(c)(5)(C) of the Federal Service Labor-Management Relations Statute (the Statute). As a remedy, the Arbitrator directed the Agency 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 its canteen as a smoking area until it provides the two additional adequate smoking shelters and gives three days notice that it has done so.

Before the Authority, the Agency contended that the Arbitrator erred in concluding that the outdoor shelters were not adequate under the Panel's precedent. Specifically, the Agency argued that outdoor smoking shelters need to provide only a modicum of protection to the user from local weather conditions. The Agency also contended that the Arbitrator exceeded his authority in ordering a remedy that required a return to indoor smoking pending the required modification of the outdoor shelters. With regard to the latter contention, the Agency argued that because of the health risks of smoking, it would be against public policy to require a return to indoor smoking when it already provides sixteen outdoor smoking shelters, "some of which are fully enclosed, ventilated and heated." 45 FLRA at 464.

The Authority concluded that the award was not deficient in its formulation and application of a standard of adequacy with respect to the outdoor smoking shelters, and that the Arbitrator acted within his remedial discretion in ordering a return to indoor smoking as an interim measure pending the modification of the outdoor shelters. The Authority found that it was not against public policy to require the parties to abide by the results of a dispute submitted to the Panel.

III. Agency's Motion for Reconsideration

The Agency contends that the Authority's decision was "unconscionable" in ordering a return to indoor smoking because "[a] return to smoking indoors, for any period of time, is a retrogressive and antisocial act which flaunts [sic] government-wide policy, jeopardizes . . . accreditation of the [Medical Center], and subjects patients, employees, visitors, and America's veterans to poisonous [environmental tobacco smoke]." Motion for Reconsideration at 2. The Agency further contends that it is "irrational" to permit the Arbitrator to use a standard of "full or complete protection[,]" rather than "modicum or measure of protection" to determine the adequacy of the outdoor smoking shelters. Id. at 3. Finally, the Agency argues that by requiring that it fully enclose, heat, and ventilate two of the sixteen outdoor shelters, the Authority is enforcing an award that "force[s] the government to waste tens of thousands of taxpayers' dollars to poison veterans, employees, and patents[.]" Id. at 4. The Agency claims that because those outdoor shelters are attached to the Medical Center, full enclosure would bring environmental tobacco smoke back into the Medical Center.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Agency has not establi