48:1067(116)AR - - VA Medical Center, Danville Veterans Hospital, Danville, IL and AFGE, Local 1963 - - 1993 FLRAdec AR - - v48 p1067

[ v48 p1067 ]
The decision of the Authority follows:

48 FLRA No. 116











LOCAL 1963





December 8, 1993


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 Anne L. Draznin filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.(1) The Union filed an opposition to the Agency's exceptions.

In her award, the Arbitrator determined that the Agency failed to provide adequate and accessible outdoor smoking shelters, and ordered certain indoor designated smoking areas (DSAs) reopened pending certain alterations to the outdoor shelters. For the following reasons, we conclude that the Agency has failed to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The Union filed a grievance concerning the Agency's implementation of a smoke-free workplace policy. Specifically, the Union alleged that the Agency failed to comply with a Federal Service Impasses Panel (FSIP) Order, 89 FSIP 198, to maintain DSAs until adequate and reasonably accessible outdoor smoking shelters were provided. The grievance was not resolved and was submitted to arbitration.

Because the parties were unable to stipulate the issue to be resolved, the Arbitrator framed the issue as follows:

Has the VA Medical Center at Danville, Illinois met their obligations under 89 FSIP 198 to provide smoking shelters that are adequate and accessible, and if not, what is the appropriate remedy?

Award at 2.

The Arbitrator found that the parties' agreement required the Agency to implement its smoke-free policy in accord with the FSIP Order, which provides, in pertinent part:

I. The Employer shall provide reasonably accessible designated smoking areas (DSA) at each of its medical facilities where the smoke-free policy is implemented. These DSAs shall be maintained until such time as the Employer provides reasonably accessible outside smoking shelter(s) at each of the aforementioned medical facilities. The shelters provided shall accommodate smoking as well as protect the user against the local weather conditions. . . .

II. Disputes with respect to the adequacy of the smoking shelter, and the accessibility of the shelter and interim DSAs, are to be resolved through the negotiated grievance and arbitration procedures in the master agreement. This Order is not to be interpreted as abridging the parties' rights under . . . their master agreement with respect to negotiating over issues that are not inconsistent with this Order concerning the impact and implementation of a smoking shelter.

Id. at 4.

The Arbitrator found that, under the FSIP Order, the Agency "must provide shelters that 'accommodate smoking as well as protect the user against the local weather conditions.'" Id. at 9. The Arbitrator's inspection of the shelters revealed that 11 of them failed to provide adequate protection. She found that these shelters would not be sufficiently accessible until they met "the requirement [in the FSIP Order] of protecting users from the weather . . . ." Id. at 13. She found further that, because the DSAs were to be maintained until the Agency provided adequate and sufficiently accessible shelters, the Agency prematurely discontinued use of the DSAs in the buildings.

The Arbitrator concluded that the Agency failed to comply with the FSIP Order. As a remedy, she ordered that the shelters in question be made adequate and that "[t]he Employer . . . develop its plans for fixing such shelters and . . . negotiate on their acceptability with the Union." Id. at 14.

III. First Exception

A. Positions of the Parties

The Agency argues that the award is contrary to the FSIP Order and inconsistent with standards set by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).(2)

The Union asserts that the award does not violate any law, rule, or regulation. The Union asserts, in this connection, that the JCAHO is "a private organization". Opposition at 2.

B. Analysis and Conclusions

Under section 7122(a) of the Statute an arbitration award will be found deficient if, among other things, it is contrary to law, rule, or regulation. The Agency asserts that the award "contradicts the letter and spirit of the FSIP Order." Exceptions at 2. Although it is not clear that the FSIP Order is a law, even if it is so construed, the award is not inconsistent with the Order. Here, the parties sought arbitral resolution of their dispute over implementation of the Agency's smoke-free workplace policy. The Arbitrator determined that the Agency failed to comply with the FSIP Order requiring adequate and reasonably accessible smoking shelters. The Agency has not demonstrated, and we have no other basis on which to conclude, that her award requiring negotiation is inconsistent with that Order. We conclude, therefore, that the Agency's exception provides no basis for finding the award deficient.

We construe the Agency's assertion that the award violates the JCAHO standard as an exception that the award is inconsistent with law or regulation. However, the Agency has not provided us with a copy of the JCAHO standards. In this respect, section 2425.2(d) of our Regulations requires that an exception be a self-contained document that includes copies of pertinent documents. See U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 45 FLRA 1139, 1142 (1992). As the Agency has failed to provide a copy of the standards on which it relies, we conclude that the Agency has failed to demonstrate that the award is inconsistent with the standards. Accordingly, we will deny this exception.

IV. Second Exception

A. Positions of the Parties

The Agency asserts that the Arbitrator misinterpreted two facts. First, the Agency asserts that the Arbitrator improperly included certain buildings in her listing of inadequate shelters. According to the Agency, employees in those buildings use one of the shelters which the Arbitrator found to be adequate. Second, the Agency argues that because two specified buildings are connected, the Arbitrator improperly listed them as separate buildings.

The Union asserts that the Agency is merely attempting to reargue its case before the Authority.

B. Analysis and Conclusions

We construe the Agency's exception as an assertion that the award is based on nonfacts. To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central facts underlying the award are clearly erroneous, but for which a different result would have been reached by the arbitrator. See American Federation of Government Employees, Local 96 and U.S. Department of Veterans Affairs, Veterans Medical Center, St. Louis, Missouri, 47 FLRA 922, 929 (1993).

We conclude that this exception is without merit. Even if the Arbitrator's findings with respect to the particular buildings specified in the exception were erroneous, the Agency has failed to demonstrate that these findings were central to the award. We conclude that the exception constitutes mere disagreement with the Arbitrator's award and as such, provides no basis on which to find the award deficient. See U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, San Bruno, California and National Federation of Federal Employees, Local 2096, 46 FLRA 1625, 1628-29 (1993).

V. Third Exception

A. Positions of the Parties

The Agency contends that the Arbitrator's "restoration of indoor smoking completely ignores public policy and thereby fails to exercise responsibility under [the Statute]." Exceptions at 2-3. Specifically, the Agency objects to the Arbitrator's determination that the Agency must restore use of some of the DSAs pending corrections to the outdoor shelters.

The Union responds that the Agency "[has] not shown what Federal policy has been violated . . . ." Opposition at 2.

B. Analysis and Conclusions

Under section 7122(a)(2) of the Statute, an award will be found deficient on grounds similar to those applied by Federal courts in private sector labor relations cases. In the private sector, courts will find an arbitration award deficient when the award is contrary to public policy. However, the Authority has held that this ground is extremely narrow. U.S. Department of the Navy, Long Beach Naval Shipyard, Long Beach, California and Federal Employees Metal Trades Council, 48 FLRA 612, 618 (1993). In particular, for an award to be found deficient on this basis, the public policy asserted must be "explicit," "well-defined," and "dominant," W.R. Grace & Co. v. Local Union 759, International Union of the United Rubber, Cork, Lineoleum & Plastic Workers of America, 461 U.S. 757, 766 (1983), and a violation of the policy "must be clearly shown." United Paperworkers International Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 43 (1987).

We previously have found that an award requiring the parties to abide by the terms of a FSIP Order was not contrary to public policy. U.S. Department of Veterans Affairs, Medical Center, Kerrville, Texas and American Federation of Government Employees, Local 2281, 45 FLRA 457, 468 (1992) (VA, Kerrville). In that case, the arbitrator similarly determined that the agency failed to provide adequate and reasonably accessible outside smoking shelters for its facilities, in violation of the same FSIP Order involved in this case. Here, as in VA, Kerrville, the portion of the award to which the Agency objects, the restoration of the indoor DSAs, is an "interim measure, lasting only until the Agency effectuates the requisite adjustments [needed to provide adequate outdoor smoking shelters]." Id. Moreover, even if we were to agree with the Agency that public policy mandates "a smoke-free society by the year 2000[]," the Arbitrator's award does not conflict with that policy. Exceptions at 3. Accordingly, the Agency has failed to demonstrate that the award is deficient as contrary to public policy and this exception will be denied.

VI. Remaining Exceptions

A. Positions of the Parties

The Agency asserts that the Arbitrator exceeded her authority by directing the parties to negotiate on the plans to fix the shelters, and that the award fails to draw its essence from the parties' agreement.

The Union asserts that these exceptions are without merit.

B. Analysis and Conclusions

An arbitrator exceeds his or her authority when, among other things, he or she issues an affirmative order that exceeds the scope of the matter submitted to arbitration. See American Federation of Government Employees, Local 916 and U.S. Department of the Air Force Oklahoma City Air Logistics Command, Tinker Air Force Base, Oklahoma, 47 FLRA 735, 741-42 (1993).

In our view, the Arbitrator squarely addressed the issue of the adequacy and accessibility of the smoking shelters and fashioned a comprehensive remedy. We note that the Agency does not contest the Arbitrator's framing of the issue. Further, we have previously concluded that the FSIP Order involved here "expressly provides for arbitral resolution of all disputes concerning the adequacy of smoking shelters, and contains no limitations on the [a]rbitrator's remedial authority . . . ." VA, Kerrville, 45 FLRA at 467. In view of the considerable discretion granted arbitrators in fashioning remedies, it is clear that an award requiring negotiation is not deficient.