Association of Civilian Technicians, New York State Council (Union) and United States, Department of Defense, National Guard Bureau, State of New York Division of Military and Naval Affairs (Agency)

[ v60 p890 ]

60 FLRA No. 164

ASSOCIATION
OF CIVILIAN TECHNICIANS
NEW YORK STATE COUNCIL
(Union)

and

UNITED STATES
DEPARTMENT OF DEFENSE
NATIONAL GUARD BUREAU
STATE OF NEW YORK DIVISION OF
MILITARY AND NAVAL AFFAIRS
(Agency)

0-AR-3877

_____

DECISION

May 4, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Elizabeth C. Wesman filed by the Union under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

      The Arbitrator denied the grievance over the Agency's implementation of a new smoking policy. For the reasons set forth below, we deny the Union's exceptions.

II.     Background and Arbitrator's Award

      On March 26, 2003, the New York State Clean Indoor Air Act was amended to prohibit smoking indoors in the workplace. As a result, the Adjutant General of the New York Army and Air National Guard issued a new smoking policy that prohibited all smoking in all facilities occupied by the New York Army and Air National Guard.

      In response to union concerns over the new smoking policy, the New York Division of Military and Naval Affairs (DMNA) advised that the amendments to the New York State Clean Indoor Air Act were binding on it and that it was required to ban smoking in any facility under its control. The Union filed a grievance. The grievance was not resolved and was submitted to arbitration.

      The parties were unable to stipulate the issues for resolution. After reviewing the parties' proposed statements of issues and determining that "[a]t the heart of this case is a dispute over the interpretation and application of the language of the Parties' Collective Bargaining Agreement[,]" the Arbitrator found the issues in this case to be as follows:

Did the Agency violate the Collective Bargaining Agreement when it issued a new smoking policy . . . ?
If so, what should the remedy be?

Award at 20, 2.

      Before the Arbitrator, the Union claimed that the Agency's unilateral implementation of the new smoking policy and its refusal to rescind the policy violated the parties' agreement and constituted unfair labor practices. The Union asserted that these actions violated Article 6, Section 4, which requires local negotiation of smoking rules, and Article 7, which requires state-level negotiation of matters not resolved at the local level. The Union also asserted that these actions constituted unfair labor practices because the Agency unilaterally changed conditions of employment and because the Agency patently breached the collective bargaining agreement.

      The Union also maintained that the Agency could not rely on state law because "[s]tate law does not trump federal law." Id. at 13. The Union argued that no federal law authorizes state regulation of the conditions of employment of federal employees. Before the Arbitrator, the Agency asserted that the new smoking policy was not subject to negotiation because it implemented a mandate to the Agency under law, which implementation was essentially nondiscretionary in nature.

      The Arbitrator denied the grievance. She found that the Agency did not violate the parties' collective bargaining agreement when it issued the new smoking policy. She ruled that, by limiting negotiations to matters "within the purview" of the Agency's smoking policy, Article 6, Section 4 of the agreement "limits the [p]arties' latitude to negotiate employee smoking rules." [n1]  Id. at 23. She ruled that the Adjutant General's new smoking policy removed discretion over the policy from "the purview of the DMNA." Id. at 24. The Arbitrator concluded that, as a result, the parties' agreement permitted the Agency to refuse to bargain over the policy. See id. [ v60 p891 ]

III.      Positions of the Parties

A.      Union's Exceptions

      The Union contends that the award is deficient because "the arbitrator improperly failed to address whether the agency's action was an unfair labor practice." Exceptions at 8. In this respect, the Union claims that the undisputed facts establish that the agency's conduct constituted a unilateral change of conditions of employment without bargaining and a patent breach of the collective bargaining agreement, both in violation of the Statute.

      The Union also contends that the award is contrary to law. In contending that the award is contrary to law, the Union asserts that the circumstances under which federal employees are allowed to smoke in the workplace are negotiable conditions of employment. The Union maintains that only federal law can authorize state regulation of federal facilities. The Union argues that without a federal statute, the matter of smoking could not be removed from the purview of the DMNA.

B.      Agency's Opposition

      The Agency argues that the Arbitrator properly determined that the DMNA was required to implement New York state law prohibiting indoor smoking in the workplace and had no discretion. The Agency disputes that the Arbitrator failed to address whether the Agency committed any unfair labor practices. The Agency asserts that the Arbitrator addressed the Agency's actions, but found that they did not constitute unfair labor practices.

IV.      Analysis and Conclusions

A.      The Arbitrator did not exceed her authority.

      The Union contends that the award is deficient because "the [A]rbitrator improperly failed to address whether the [A]gency's action was an unfair labor practice." Id. We view this as a contention that the award is deficient because the Arbitrator exceeded her authority. Arbitrators exceed their authority when, among other things, they fail to resolve an issue submitted to arbitration. See, e.g., AFGE Local 1367, 60 FLRA 187, 190 (2004) (Chairman Cabaniss dissenting). In this case, we agree with the Union that the Arbitrator did not address whether the Agency's actions constituted unfair labor practices under the Statute. However, we conclude that the Union fails to establish that in not addressing whether the Agency committed any unfair labor practices, the Arbitrator exceeded her authority.

      The parties in this case were unable to stipulate the issues for resolution. After reviewing the parties' proposed statements of issues, the Arbitrator found that "[a]t the heart of this case is a dispute over the interpretation and application of the language of the Parties' Collective Bargaining Agreement." Award at 20. Accordingly, the Arbitrator framed the issues in this case, as follows:

Did the Agency violate the Collective Bargaining Agreement when it issued a new smoking policy
. . . ?
If so, what should the remedy be?

Id. at 2. The award is precisely a resolution of these issues.

      In these circumstances, the Arbitrator properly confined herself to determining whether the Agency violated the agreement. In the absence of a stipulation that also included the issue of whether the Agency committed any unfair labor practices, the Arbitrator was not obligated to address and resolve whether the Agency's actions violated the Statute. See AFGE Local 1367, 60 FLRA at 190 (where, in the absence of a stipulation of issues by the parties, the arbitrator framed the issue in terms of a violation of the collective bargaining agreement, the arbitrator was not obligated to address whether the agency's actions violated law). Moreover, because the Arbitrator was not obligated to address and resolve whether the Agency's actions violated the Statute, the Union's claim that the Agency's conduct constituted unfair labor practices provides no basis for finding the award deficient. See id. (Authority determined that union failed to show how award confined to interpreting the parties' agreement was contrary to law).

      Accordingly, we deny this exception.

B.      The award is not contrary to law.

      We review questions of law raised by exceptions to an arbitrator's award de novo. See NTEU Chapter 24, 50 FLRA 330, 332 (1995). In applying a standard of de novo review, we determine whether the award is consistent with the applicable standard of law. See NFFE Local 1437, 53 FLRA 1703, 1710 (1998).

      In denying the grievance, the Arbitrator found that under the terms of Article 6, Section 4, the parties [ v60 p892 ] agreed that the Agency was obligated to bargain only over matters "within the purview of [t]he Adjutant General[][.]" Award at 3. The Arbitrator ruled that the matter of indoor smoking had been removed from the discretion and purview of the Adjutant General. Consequently, she found no duty to bargain under the agreement on the circumstances under which technicians could smoke. We reject the Union's claim that this award is contrary to law.

      The Authority has repeatedly acknowledged that parties are permitted to define through negotiations their bargaining obligations under the Statute. See, e.g., Dep't of the Air Force, Air Force Materiel Command, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1532, 1536 (1996); accord AFGE Local 3529, 52 FLRA 1313, 1319 (1997). Unless the contract provision is unenforceable, "[o]nce the parties have defined their bargaining obligations through an agreement, the issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for the [a]rbitrator." AFGE Local 3529, 52 FLRA at 1319.

      The Arbitrator interpreted Article 6, Section 4 as defining the parties' bargaining obligation over smoking and limiting that obligation to matters that were "within the purview of the Adjutant General's DMNA smoking policy letter." The Union fails to establish that, as interpreted by the Arbitrator, the agreement is unenforceable. In particular, the Union does not argue, and no basis is provided for finding, that the parties were prohibited from defining through negotiations their bargaining obligations under the Statute over smoking. Consequently, as interpreted by the Arbitrator, Article 6, Section 4 is enforceable. As the Arbitrator was simply enforcing lawful, agreed-upon limits on the parties' obligation to bargain on the circumstances under which technicians could smoke, the award is not contrary to law. [n2]  Cf. Soc. Sec. Admin., Baltimore, Md., 55 FLRA 1063, 1069 (1999) (because parties are not prohibited from agreeing to a contract provision regarding a matter covered under § 7106(b)(1) of the Statute, such a provision is enforceable in arbitration, and an award enforcing the contractual provision is not contrary to law); accord United States Dep't of the Treasury, Internal Revenue Serv., Washington, D.C., 56 FLRA 393, 395-96 (2000).

      Accordingly, we deny this exception. [n3] 

V.      Decision

      The Union's exceptions are denied.



Footnote # 1 for 60 FLRA No. 164 - Authority's Decision

   Article 6, Section 4 provides: "[T]he Chapter President . . . will meet with the local facility supervisors to negotiate over rules governing employees smoking within the purview of The Adjutant General's DMNA smoking policy letter." Award at 3.


Footnote # 2 for 60 FLRA No. 164 - Authority's Decision

   This case does not present, and we do not address, the question of whether the Agency would have been obligated to bargain over the impact and implementation of the new smoking policy. The Union never requested to bargain over impact and implementation; the Union's only request was to bargain over the substance of the smoking policy and its unfair labor practice allegations were limited to the Agency's refusal to bargain over the substance of the smoking policy.


Footnote # 3 for 60 FLRA No. 164 - Authority's Decision

   In denying this exception, we emphasize that we have reviewed the Arbitrator's award and not the Arbitrator's reasoning in determining that the matter of smoking was not withi