[ v17 p952 ]
The decision of the Authority follows:
17 FLRA No. 125 U.S. DEPARTMENT OF LABOR Agency and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 12 Union Case No. 0-AR-762 DECISION This matter is before the Authority on exceptions to the award of Arbitrator Paul J. Fassar, Jr. filed by both the Agency and the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations. The dispute in this matter concerns an allegation that the Agency had failed to provide the grievant, who has an extreme sensitivity to tobacco smoke due to a medical condition, with a totally smoke-free working environment. The Agency had moved the grievant's work station several times to different locations in an effort to accommodate her sensitivity, but for various reasons each location proved unsatisfactory to either the grievant or the Agency. The grievant was ultimately assigned to a permanent work station in which she was supplied with a fan and surgical mask, partitions were erected and the room rearranged so that the nearest smoker was thirty feet away. Grievant did not find this arrangement satisfactory, requested and was granted leave without pay and filed the subject grievance which proceeded to arbitration. The original arbitrator, at the Union's request, issued an Interim Directive which, in effect, banned smoking in the grievant's work area. This Interim Directive was not accepted by the grievant, the Union or the Agency and the original arbitrator withdrew from the case. The Arbitrator in the award before the Authority determined that the Agency acted responsibly in dealing with the grievant and met its obligation under the parties' collective bargaining agreement and appropriate regulation to provide as nearly as possible a suitable work environment. However, the Arbitrator awarded the grievant backpay plus accrued benefits for the period between the date of the Interim Directive and the date the Agency rejected it, reasoning that during that period, the leave without pay was not under the grievant's control. The Union and the Agency then filed the instant exceptions to this award. In its exceptions, the Union contends that the award is contrary to law, rule and regulation and the parties' collective bargaining agreement. In support of its exceptions, essentially reiterating arguments made before the Arbitrator, the Union asserts: (1) the Arbitrator erred in failing to find that the grievant was a handicapped employee pursuant to section 791 of the Rehabilitation Act, 29 U.S.C. 701 et seq., and was therefore entitled to an accommodation of her handicap which was not provided by the Agency; (2( the Arbitrator erred in finding that the Agency had fully discharged its obligation to the grievant under the Rehabilitation Act, Executive Order 12196, (pertaining to occupational safety and health programs for Federal employees) and implementing regulations, and a related provision of the parties' collective bargaining agreement; and (3) the Arbitrator erred in failing to find that the Agency's failure to provide the grievant with a smoke-free environment constituted an unjustified and unwarranted personnel action within the meaning of the Back Pay Act, 5 U.S.C. 5596. The Union also asserts that the Arbitrator's failure to award all backpay and other relief sought by the grievant and to restore leave was arbitrary, capricious and unreasonable. /1/ However, the Authority concludes that the Union fails to establish the award is deficient as alleged. Rather, it is clear that the Union is attempting to relitigate the merits of the case before the Authority and that the thrust of the Union's arguments constitutes nothing more than disagreement with the Arbitrator's findings of fact and reasoning and conclusions in resolving the dispute before him and with his interpretation and application of the parties' collective bargaining agreement. Consequently, the exceptions do not provide a basis for finding the award deficient and are denied. See, e.g., Department of the Air Force, Williams Air Force Base, Arizona and American Federation of Government Employees, Local 1776, 12 FLRA 509 (1983); National Treasury Employees Union and U.S. Nuclear Regulatory Commission, 12 FLRA 609 (1983). In its exceptions, the Agency contends, among other things, that the award violates the Back Pay Act, 5 U.S.C. 5596. The Authority agrees. The Authority has uniformly held that for an award of backpay to be authorized under the Back Pay Act, there must be a determination that the employee was affected by an unwarranted personnel action and also a determination that such unwarranted action directly resulted in the withdrawal or reduction in the pay, allowances or differentials the employee would otherwise have earned or received. E.g., Jefferson Barracks National Cemetery, St. Louis, Missouri and National Association of Government Employees, Local R14-116, 13 FLRA 703 (1984). In terms of this case, the Arbitrator found only that during the pendency of the Interim Directive, the grievant was in a leave without pay status for reasons not under her control /2/ and that it was "fair and proper" to award wages and other accrued benefits for that period. The Arbitrator plainly failed to make the findings necessary for an authorized award of backpay; indeed, the Arbitrator found that the Agency met its obligation to provide the grievant with a suitable work environment. Consequently, the award of backpay plus accrued benefits is contrary to the Back Pay Act and is set aside. /3/ Issued, Washington, D.C., May 9, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union also requests attorney fees. In this regard, since the Arbitrator's award of backpay is set aside as contrary to the Back Pay Act, an award of attorney fees is unwarranted. See Audie L. Murphy Veterans Administration Hospital, San Antonio, Texas and American Federation of Government Employees, AFL-CIO, Local No. 3511, 16 FLRA No. 140 (1984). /2/ At the same time, the Arbitrator found that the Interim Directive, prohibiting smoking in the grievant's work room, failed for lack of acceptance by the grievant and the Union as well as the Agency. The Arbitrator attributed the Union's dissatisfaction to the Union's concern for the rights of employees who smoke, and the grievant's dissatisfaction to insistence on a smoke-free work room as the only acceptable alternative. /3/ In view of this decision it is not necessary to address the Agency's other exceptions to the award.