49:0630(59)AR - - VA Medical Center, Northport, NY and NFFE, Local 387 - - 1994 FLRAdec AR - - v49 p630



[ v49 p630 ]
49:0630(59)AR
The decision of the Authority follows:


49 FLRA No. 59

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

NORTHPORT, NEW YORK

(Agency)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 387

(Union)

0-AR-2506

_____

DECISION

March 24, 1994

_____

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 Joan Ilivicky filed by the Department of Veterans Affairs (VA or Agency) on behalf of its Northport, New York 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 filed an opposition to the Agency's exceptions.(1)

The Arbitrator determined that the Medical Center violated the parties' collective bargaining agreement by failing to provide at its facility adequate and accessible outdoor smoking shelters and a smoking cessation program. As a remedy, the Arbitrator directed the Medical Center, among other things, to: (1) establish a committee, including Union representatives, to address the adequacy and accessibility of the smoking shelters; and (2) formulate with the Union smoking cessation programs for all tours of duty.

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

II. Background and Arbitrator's Award

The Union filed a grievance alleging that the Medical Center violated the parties' collective bargaining agreement with respect to the establishment of outdoor smoking shelters at its facility. For purposes of bargaining at the national level, the Medical Center is represented by the VA and the Union is represented by the National Federation of Federal Employees-VA Council (the Council). The requirement that the Medical Center establish smoking shelters resulted from a collective bargaining agreement between the VA and the Council to implement a smoke-free environment policy in VA health care facilities required by the VA and the Joint Commission for the Accreditation of Hospital Organizations (JCAHO). When the grievance was not resolved, it was submitted to arbitration.

The issue before the Arbitrator was as follows:

Has the [Medical Center] violated the collective bargaining agreement between the [VA] and the [Council] dated February 14, 1992 with reference to adequacy and accessibility of smoking shelters and smoking cessation programs? If so, what shall be the remedy?

Award at 2.

The Arbitrator first noted that the parties were afforded an opportunity to develop their respective positions by testimonial and documentary evidence and by oral and written argument. The Arbitrator found that in the parties' agreement the VA agreed to provide accessible outside smoking shelters and to "'accommodate smoking as well as protect the user against the local weather conditions.'" Id. at 4.(2) The Arbitrator noted that she and the parties' representatives toured the Medical Center and inspected a number of the shelters. Based on the inspection and the record evidence, the Arbitrator found that the Agency had neither accommodated nor protected smokers from local weather conditions as required by the parties' agreement.

As to safety inadequacies, the Arbitrator found that there were problems with the location of shelters in the access pathways to buildings and that such problems required correction. The Arbitrator also found that fire extinguishers were needed for each shelter, as well as a means of communicating for emergency purposes. The Arbitrator further found that the Medical Center had not met the contractual obligation to sponsor smoking cessation programs. The Arbitrator found that while the Agency offered such programs to employees on the day shift, no such programs were offered on other shifts. The Arbitrator noted the Agency's testimony that smoking cessation programs could be administered on these shifts by members of the psychiatric nursing staff who were available but that no effort was made to use the nurses in this capacity. The Arbitrator also found that the Union was denied its contractual right to participate in the formulation of the smoking cessation programs.

The Arbitrator found that to conform to the parties' agreement and afford the protection necessitated by the weather conditions affecting the work site, the smoking shelters required: (1) more enclosures than currently available; (2) additional walls and the installation of floors, heat, insulation, and ventilation; (3) lighting as well as emergency communication equipment; (4) receptacles for smoking material; and (5) a clean space that was not adjacent to trash containers or collection facilities. In so finding, the Arbitrator noted a prior arbitration award involving the VA and another union submitted by the VA to support its position that the shelters were in accordance with the parties' agreement. The Arbitrator found that the earlier award was not controlling. The Arbitrator stated that "[u]nlike the facts presented to [the arbitrator in that case], the shelters in this instance fail to meet the standards set forth in the collective bargaining agreement." Id. at 8. The Arbitrator also rejected the Agency's contention that it had met its obligation by providing a "modicum of protection" consistent with a prior decision of the Federal Service Impasses Panel (the Panel). Id. The Arbitrator stated that the Panel decision was not applicable because the "'modicum of protection'" approach was insufficient to comply with the terms of the parties' agreement and the weather conditions affecting the facility involved in the Panel decision were different from the conditions affecting the Medical Center. Id.

Accordingly, the Arbitrator determined that the Agency had violated the parties' agreement with respect to the adequacy and accessibility of outdoor smoking shelters and the establishment of smoking cessation programs. As a remedy, the Arbitrator directed the following:

1) The [Medical Center] shall appoint a committee which will include Union members to address the issue of the inadequacy and inaccessibility of the smoking shelters. The committee shall have thirty days from the receipt of this award in which to present its findings. The [Agency] will be responsible for implementing the agreed changes.

2) The Union shall submit to the Arbitrator within thirty days from receipt of this award, data for the determination of the adequacy of the size and number of smoking shelters. Failing to meet this time restriction, the issues will be removed from the grievance, with prejudice.

3) The Psychology Service together with the Union shall formulate smoking cessation programs to be offered on all tours of duty through December, 1993. The psychiatric nursing staff shall be included in implementing the program for off tours.

Id. at 9.

III. First Exception

A. Positions of the Parties

The Agency contends that the award is contrary to law because it "ignores VA manual provisions and policy" that implement a smoke-free environment and "have the force and effect of law." Exceptions at 1. Citing VA Circular 10-90-142, the Agency contends that its policy to eliminate smoking from its health care facilities promotes Government public policy by eliminating an unhealthy environment caused by environmental tobacco smoke (ETS).(3) The Agency also asserts that JCAHO issued a standard effective January 1, 1992, that required the Chief Executive Officer of the hospital to provide for the dissemination and enforcement of hospital-wide smoking policies that prohibit smoking. According to the Agency, a "return to smoking indoors, for any period of time[,] is a retrogressive act which flouts [G]overnment-wide policy, jeopardizes accreditation, and subjects patients" to poisonous ETS. Id. at 3. The Agency asserts that the Arbitrator's award has such an effect and, therefore, is contrary to its regulation and law.

The Union disputes the Agency's contention that the award is contrary to regulation and law. The Union asserts that the Arbitrator did not direct any return to indoor smoking and, therefore, the Agency's claim is not supported.

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 contends that the award is contrary to its regulation, VA Circular 10-90-142, because the award requires a return to smoking indoors, which is contrary to Government-wide policy.

We find nothing in the award that directs the Medical Center to return to a policy of allowing indoor smoking. The Arbitrator determined that the Medical Center failed to comply with the parties' agreement and directed the Medical Center to appoint a committee to address the inadequacy and inaccessibility of the outdoor smoking shelters. Outdoor smoking shelters are provided for in VA Circular 10-90-142. See Exceptions, Attachment E at A-1. The VA has not demonstrated that the Arbitrator's award in any way requires the Medical Center to return to a policy of allowing indoor smoking or is otherwise inconsistent with its regulation. We conclude, therefore, that the VA's contention provides no basis for finding the award deficient.

We further construe the VA's assertion that the award violates the JCAHO standard as a contention that the award is inconsistent with law or regulation. However, the VA has not provided us with a copy of the JCAHO standard. Section 2425.2(d) of our Regulations requires that an exception be a self-contained document that includes copies of pertinent documents. Because the VA has failed to provide a copy of the standard on which it relies, we conclude that the VA has failed to demonstrate that the award is inconsistent with the standard. See U.S. Department of Veterans Affairs, Medical Center, Danville Veterans Hospital, Danville, Illinois and American Federation of Government Employees, Local 1963, 48 FLRA 1067, 1070 (1993). Accordingly, we will deny this exception.

IV. Second Exception

A. Positions of the Parties

The VA asserts that the award violates management's right to determine its budget under section 7106(a)(1) of the Statute. According to the Agency, the parties' agreement does not give the Arbitrator authority to order the construction of, or to design, smoking shelters under the guise of determining adequacy. The Agency asserts that the Arbitrator improperly substituted her judgment for management as it relates to the adequacy of the shelters and that the Arbitrator's decision will give an arbitrator license to "usurp management's statutory right[] to determine where it will spend funds designated to it by Congress." Exceptions at 4.

The Union asserts that the Arbitrator has not substituted her judgment for management with respect to how the Agency spends its funds. The Union states that the award requires the Agency to establish a committee, including Union members, to address the issue of the adequacy and accessibility of the smoking shelters. The Union asserts that the Arbitrator is not a member of the committee and, thus, is not involved in the committee's deliberations.

B. Analysis and Conclusions

We conclude that the award is not contrary to section 7106(a)(1) of the Statute on the ground that it conflicts with management's right to determine its budget. The award merely enforces the procedures agreed to by the parties for implementation of the VA's smoke-free environment policy for its facilities. The award does not prescribe a program, operation, or dollar amount that the VA must include in its budget. Rather, the Arbitrator directed the Agency to establish a committee, including Union representatives, to address the issue of the inadequacy and inaccessibility of the outdoor smoking shelters. Moreover, the Authority and the courts have recognized that the collective bargaining system frequently involves the expenditure of funds and that the Statute was not intended to apply only in circumstances involving no cost to the Government. See American Federation of Government Employees, Local 1698 and U.S. Department of the Navy, Naval Aviation Supply Office, Philadelphia, Pennsylvania, 38 FLRA 1016, 1025-26 (1990) (citing American Federation of Government Employees v. FLRA, 785 F.2d 333, 338 (D.C. Cir. 1986)). Thus, the mere fact that an award may require an agency to expend funds, standing alone, does not render an award deficient under section 7106(a)(1). Consequently, the award enforcing the parties' agreement does not interfere with management's right to determine its budget under section 7106(a)(1) of the Statute. See, for example, National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Pacific Region, 47 FLRA 1038, 1046 (1993). Accordingly, we conclude that this exception does not provide a basis for finding the award deficient.

V. Third Exception

A. Positions of the Parties

The Agency asserts that the award is based on a nonfact because the Arbitrator "assumed to be true the Union's allegations that the shelters are without light and have dirt floors, and [present] safety violations." Exceptions at 1. The Agency contends that testimony was presented that the shelters were lit by either overhead lamps or by existing street lamps and that all but three of the shelters have concrete floors. The Agency further asserts that the Arbitrator's failure to make the same findings as the arbitrator did in a prior award is erroneous. The Agency asserts that in the prior award the arbitrator found that the smoking shelters were adequate and accessible. Thus, the Agency contends, based on the facts and issues in that award, that the award in this case is based on a nonfact and is deficient.

The Union contends that the Agency's assertion is not supported by the record. The Union asserts that the Arbitrator's determination is based on her personal observation of the shelters. The Union contends, therefore, that this exception provides no basis for finding the award deficient.

B. Analysis and Conclusions

To establish that an award is based on a nonfact, the party making the allegation must demonstrate that a central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. See, for example, American Federation of State, County and Municipal Employees, Local 2477 and Library of Congress, 48 FLRA 1021, 1027 (1993). The VA asserts that the award is erroneous because the Arbitrator assumed that the Union's allegations that the shelters are without light and have dirt floors, and present safety violations are true. We find the VA's contention unpersuasive. The Arbitrator specifically found, based on her personal inspection of the outdoor smoking shelters and her evaluation of the record evidence, including testimonial evidence from both parties, that the Medical Center had neither accommodated nor protected smokers from local weather conditions as required by the parties' agreement. The VA has not demonstrated that the findings by the Arbitrator are clearly erroneous. In our view, the VA's contentions constitute mere disagreement with the Arbitrator's findings of fact, evaluation of the evidence and the credibility and weight given the witnesses' testimony, and as such, provide no basis for finding the award deficient. See, for example, id.; Overseas Education Association, West Point Elementary School Teachers and U.S. Department of Defense, United States Military Academy, West Point, New York, 48 FLRA 213, 218 (1993).

In addition, we reject the VA's reliance on the award of another arbitrator as a basis for finding this award deficient. The Authority does not find arbitration awards deficient solely on the basis that they conflict with previous arbitration awards. See American Federation of Government Employees, Local 476 and U.S. Department of Housing and Urban Development, Washington, D.C., 44 FLRA 566, 572 (1992); American Federation of Government Employees, Local 1273 and U.S. Department of Veterans Affairs Medical Center, Boise, Idaho, 44 FLRA 707, 712-13 (1992). Moreover, we note that the Arbitrator distinguished the facts in this case from the facts involved in the prior arbitration award. In this connection, the Arbitrator found that unlike in the prior arbitration award which involved a different union and a different agreement, the smoking shelters failed to meet the standards set forth in the agreement governing the instant dispute. Consequently, the Arbitrator determined that the prior award was not controlling in this case. In our view, the VA's disagreement with the Arbitrator's finding is merely an attempt to relitigate the issues presented to and resolved by the Arbitrator. Such disagreement provides no basis for finding the award deficient. Accordingly, we will deny this exception.

VI. Fourth Exception

A. Positions of the Parties

The Agency asserts that the award does not draw its essence from the parties' agreement. Noting the wording of the first paragraph of the parties' agreement, the VA asserts that this paragraph was taken from an order of 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), wherein the Panel resolved a dispute between the VA and the National VA Council, AFGE at the national level concerning designated smoking areas. Also, the Agency asserts that in Department of the Air Force, MacDill Air Force Base, MacDill AFB, Florida and Local 153, National Federation of Federal Employees, Case No. 90 FSIP 217 (1990) (MacDill), the Panel further clarified its view with respect to the adequacy and accessibility of outdoor smoking shelters. The Agency notes that the Panel stated that in its view "'employees who smoke are entitled to a 'modicum of protection' from the elements[.] It has never been the Panel's intent in any of its decisions concerning outside designated smoking areas to require the construction or modification of a structure that would provide complete protection from the elements." Exceptions at 5 (quoting MacDill at 3).

The Agency contends that because the first paragraph of the parties' agreement is based on the Panel's order in Veterans Health Services, the standard of "modicum of protection," rather than the standard of complete protection applied by the Arbitrator, should apply to the adequacy and accessibility of its shelters. Further, relying on the arbitrator's decision in the prior arbitration award mentioned above, the Agency argues that the arbitrator in that case determined that its shelters were adequate and accessible in compliance with a contractual agreement. In view of the Panel's decisions and the prior arbitration award, the Agency asserts that the Arbitrator's determination that the Medical Center violated the parties' agreement by not providing adequate and accessible shelters does not draw its essence from the parties' agreement because the Arbitrator failed to apply the proper standard of "modicum of protection" to judge the adequacy and accessibility of its outdoor smoking shelters.

The Union contends that the Agency's exception provides no basis for finding the award deficient because the award only requires the Medical Center to comply with the parties' agreement.

B. Analysis and Conclusions

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; (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; (3) evidences a manifest disregard for the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of Veterans Affairs Medical Center, Kerrville, Texas and American Federation of Government Employees, Local 2281, 45 FLRA 457, 464-65 (1992) (VA Medical Center, Kerrville, Texas).

In VA Medical Center, Kerrville, Texas, an arbitrator formulated and applied a standard to determine the adequacy of outdoor smoking shelters at another VA medical center. We found that the arbitrator's formulation and application of the standard was reasonably related to the Panel's decision and order in Veterans Health Services, and, therefore, the award in VA Medical Center, Kerrville, Texas was not deficient under any of the tests set forth above. In so finding, we noted that the Panel's decision and order, which the parties had incorporated into their agreement, expressly required arbitral determination of all disputes relating to the adequacy of smoking shelters. We further found that the arbitrator's determination that the shelters did not adequately protect the user against the local weather conditions, as mandated by the parties' agreement, took into account evidence presented at the arbitration hearing and the local weather conditions. Consequently, we found that the award did not disregard the parties' agreement and was not implausible, irrational, or unconnected to the wording of that agreement. We concluded, therefore, that no basis existed to find that the award failed to draw its essence from the agreement. Additionally, we found no merit to the agency's argument that the award was deficient because it did 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. We found that those disputes involved different parties and dissimilar work situations from those involved in VA Medical Center, Kerrville, Texas.

The instant exception involves similar issues and the same Panel decision and order that were involved in VA Medical Center, Kerrville, Texas. We find that the VA has failed to demonstrate that the Arbitrator's formulation and application of a standard to determine the adequacy of the outdoor smoking shelters is deficient under any of the tests set forth above. In concluding that the shelters did not afford the employees protection necessitated by the weather conditions at the work site, the Arbitrator considered the record evidence, the local weather conditions, and the terms of the parties' agreement. We find that the Arbitrator's determination, as in VA Medical Center, Kerrville, Texas, does not disregard the parties' 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. Also, for the reasons expressed in VA Medical Center, Kerrville, Texas, we find no merit to the VA's contention that the award is deficient because it does not comply with the Panel's statements in MacDill that outdoor smoking shelters should provide a modicum of, but not complete, protection from local weather conditions. In this connection, the Arbitrator found that that dispute, which involved different parties, concerned a different work situation from that involved in this case. Further, for the reasons expressed above, we reject the VA's reliance on the award of another arbitrator as a basis for finding the award deficient. Accordingly, we find that this exception provides no basis for finding the award deficient.

VII. Fifth Exception

A. Positions of the Parties

The VA contends that the award is deficient because the Agency was deprived of its due process rights. According to the Agency, at the arbitration hearing the Arbitrator gave the Union an opportunity to submit a post-hearing brief. The Agency contends that it requested an opportunity to respond to the Union's brief and the Arbitrator assured the Agency that it would be afforded this opportunity. The Agency asserts that although the Union filed a brief, the Agency was not served with a copy by the Union or the Arbitrator. The Agency states that it did not learn of the Union's brief until after it received the Arbitrator's decision. The Agency argues, therefore, that the award is deficient on procedural grounds because it was deprived of its due process rights to respond to the Union's brief.

The Union asserts that the Agency's due process rights were not denied by the Arbitrator. According to the Union, during the hearing the Arbitrator afforded the parties an opportunity to file post-hearing briefs. The Union states that it indicated that it would file a brief and the Agency indicated that it would not file a brief. The Union further states that the Agency did not request a copy of its brief. The Union asserts that the Arbitrator instructed the Union to send its brief to the Arbitrator and, as the Agency did not intend to file a brief, the Arbitrator stated that no rebuttal briefs would be accepted from the parties. The Union asserts that because the Arbitrator had indicated that rebuttal briefs would not be accepted and as the Union was not told by the Arbitrator to serve the Agency with its brief, it did not serve the Agency.

B. Analysis and Conclusions

The VA contends that because the Arbitrator issued her decision without the Union having served a copy of its post-hearing brief on the VA, the VA was deprived of its due process rights to respond to the Union's brief. We construe the VA's contention as an assertion that the Arbitrator failed to conduct a fair hearing.

The Authority will find an award deficient when it is established that the arbitrator failed to conduct a fair hearing by, for example, refusing to consider pertinent and material evidence. See, for example, U.S. Department of the Air Force, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 39 FLRA 103, 107 (1991) (arbitrator's acknowledged failure to consider the union's position constituted failure to conduct a fair hearing). However, an arbitrator has considerable latitude in the conduct of a hearing. See, for example, U.S. Department of Housing and Urban Development and American Federation of Government Employees, Local 476, 42 FLRA 813, 819 (1991) (arbitrator's issuance of his decision before union filed a final brief did not deny union a fair hearing).

We conclude that the VA has not demonstrated that the Arbitrator failed to conduct a fair hearing. According to the Union's uncontroverted statement, the Arbitrator afforded the parties an opportunity to file post-hearing briefs, which the Union accepted and the VA declined. The VA has not shown that the Arbitrator's failure to afford the VA an opportunity to respond to the Union's brief or the Union's failure to serve a copy of its brief on the VA prejudiced the VA's ability to fully and completely present its position before the Arbitrator. Rather, the record shows that the Arbitrator afforded the VA the opportunity to fully develop its position through testimonial and documentary evidence and oral and written argument. Moreover, we note that the Union disputes the VA's claim that the Arbitrator gave the VA an opportunity to respond to the Union's brief. The Union claims that the Arbitrator indicated that no rebuttal briefs would be accepted. The Union asserts, therefore, that the VA was not harmed by the Arbitrator's failure to allow it to respond to its brief. In our view, the VA has not demonstrated that the Arbitrator denied it a fair hearing by failing to afford it an opportunity to respond to the Union's brief. Accordingly, we will deny this exception.

VIII. Decision

The Agency's exceptions are denied.

APPENDIX

The following constitutes agreement between the [VA] and the [Council] regarding Smoke Free Environments in VA Health Care Facilities.

1. The [VA] 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 [VA] 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. . . .

2. 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.

. . . .

4. Each medical facility will provide the [U]nion an opportunity to present their views concerning the adequacy and accessibility of the shelter(s). Consultation shall take place concerning these views and the facility will give due consideration to the [U]nion's concerns.

5. The facility wi