[ v45 p737 ]
The decision of the Authority follows:
45 FLRA No. 64
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 Martin H. Malin 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. The Union filed an opposition to the Agency's exceptions.
The grievance in this case alleged that the Agency's refusal to negotiate over the decision to ban smoking at its facilities violated the parties' agreement and the Statute. The Arbitrator found that by unilaterally banning smoking and refusing to bargain over that decision, the Agency violated the parties' agreement and section 7116(a)(1) and (5) of the Statute. The Arbitrator directed the Agency to bargain with the Union over its decision to ban smoking and ordered a restoration of the former smoking policy at one Agency location and the creation of designated smoking areas at another location where bargaining unit employees are located.
For the reasons discussed below, we conclude that the Agency's exceptions provide no basis for finding the award deficient. Accordingly, we will deny the exceptions.
II. Background and Arbitrator's Award
On May 5, 1987, the then-Secretary of Health and Human Services (HHS), Otis Bowen, issued a directive stating that all smoking would be prohibited in HHS building space. The directive superseded a January 11, 1978, directive from then-Health, Education and Welfare Secretary (HEW) Joseph Califano, which provided for smoking and non-smoking areas in space controlled by HEW. The Califano directive was implemented by the Agency on January 9, 1979.
The National Treasury Employees Union (NTEU) demanded that HHS negotiate at the national level over the decision to prohibit smoking. HHS denied any obligation to bargain about the decision, but allowed the Union to exercise consultation rights. On August 25, 1987, the HHS Assistant Secretary for Management and Budget directed implementation of the smoking ban within 6 months. On August 31, 1987, the HHS Region V labor relations officer advised the president of the local Union of the new smoking policy.
The Union responded by proposing the maintenance of existing policies until the Agency completed a planned move to 105 West Adams Street in Chicago, Illinois. At the time of the proposal, the Agency was located at 300 South Wacker Drive and 175 West Jackson Boulevard in Chicago, with approximately 40 unit employees who were not affected by the move located at 600 West Madison, also in Chicago.1/ The Agency agreed to this proposal, but rejected several other Union proposals for designated smoking areas at the new location on the ground that the substance of the smoking ban was not subject to negotiation.
The Union filed a grievance alleging that the Agency's refusal to negotiate over the decision to ban smoking violated the parties' agreement and the Statute. The Agency responded, arguing that Article 30, Section 9 of the parties' April 22, 1986, agreement authorized the ban and that because it had a compelling need to ban smoking, it was not required to bargain about the decision.2/ The Union demanded arbitration, but the parties agreed to hold arbitration in abeyance while the compelling need issue was litigated in unfair labor practice charges filed by other NTEU chapters.3/
On November 30, 1990, in U.S. Department of Health and Human Services v. FLRA, 920 F.2d 45 (D.C. Cir. 1990), the U.S. Court of Appeals for the District of Columbia rejected HHS's compelling need defense to its duty to bargain. The parties then proceeded to arbitration in this case.
The parties were unable to stipulate to the issue before the Arbitrator. The Arbitrator framed the issues as follows:
[W]hether the [Agency] violated the contract and 5 U.S.C. 7116(a)(1) and (5) by unilaterally banning smoking by bargaining unit employees in the Region V work place and, thereby, refusing to negotiate over the substance of the ban? If so, what is the appropriate remedy?
Award at 13.
Before the Arbitrator, the Agency contended that in Article 30, Section 9 of the parties' agreement, the parties agreed to be bound by whatever smoking policy the Agency might adopt. The Agency contended that Section 9 merely adopts the Agency's policy generically and does not specify the Califano policy. The Agency argued that the Union drafted the language of Section 9 and, to the extent that it is ambiguous, it should be construed against the drafter. Further, the Agency contended that Section 9 must have been intended to automatically incorporate future HHS action because it purports to adopt HHS regulations governing smoking even though no such regulations existed at the time. The Agency observed that in Section 1(B) of Article 30, the parties adopted the Occupational Safety and Health Administration (OSHA) general standards and did not intend that they negotiate every time OSHA changed one of its standards.4/
The Agency further contended that: (1) the bargaining history supports its interpretation of Article 30, Section 9; (2) Section 9 must be read in conjunction with the rest of Article 30, particularly Section 1(A), which provides for a safe and healthy work environment; (3) the Federal Service Impasses Panel (FSIP) has on several occasions imposed smoking bans when parties have reached impasse on the issue; and (4) smoking is a fire hazard and under section 7106(a)(1) of the Statute, the Agency has a non-negotiable management right to determine its internal security practices, including banning smoking to prevent fires.
The Union contended before the Arbitrator that the parties adopted the Califano smoking policy as the contractual provision regulating the rights of smokers and nonsmokers in the work place. The Union argued that the bargaining history supports its position. The Union contended that the ban was a negotiable issue and that the Agency's failure to negotiate constituted an unfair labor practice, as well as a breach of contract.
The Union argued that an appropriate remedy should include a return to the status quo ante. The Union contended that whether a status quo ante remedy might breach a contract with another union is not relevant.
Preliminarily, the Arbitrator decided four matters. First, he found that the May 1988, multiregional contract had no impact on this dispute because it was clear that the parties had agreed that the issue of the smoking ban would be resolved through the grievance procedure, rather than through local bargaining, as mandated by the new contract. Second, the Arbitrator found that FSIP decisions banning smoking were irrelevant to this dispute because speculation as to the outcome of a bargaining impasse has no effect on whether bargaining is required in the first place. Third, the Arbitrator rejected the Agency's contention that the smoking ban is an exercise of its management right to determine its internal security practices. The Arbitrator noted that the Authority and the D.C. Circuit Court of Appeals have ruled that a smoking ban is negotiable. The Arbitrator found that the record did not support the Agency's claim that smokers are more likely to cause fires than nonsmokers. The Arbitrator further found no evidence of any fire dangers specific to the Agency's premises resulting from smoking under the Califano policy or the Union's proposals for designated smoking areas. Finally, the Arbitrator concluded that the resolution of the contractual and statutory issues turned completely on the meaning of Article 30, Section 9.
The Arbitrator concluded "based on a preponderance of the evidence, that, when viewed objectively, the parties manifested an intention to adopt the [Califano] policy and subject any changes in the policy to decision bargaining." Award at 15. The Arbitrator made his conclusion based on a detailed review of the bargaining history of Section 9.
The Arbitrator rejected the Agency's contention that because the Union drafted Section 9 he should construe ambiguities in that provision against the drafter. The Arbitrator found that Section 9 was jointly drafted by the parties because it had resulted from a series of offers and counter-offers. The Arbitrator also found unpersuasive the Agency's argument that Section 1(A) controls the interpretation of Section 9. The Arbitrator concluded that "Section 9 being more specific, certainly, in the absence of evidence to the contrary, should govern over the more general [S]ection [1(A)]." Id. at 16 n.6.
The Arbitrator further found that a review of the parties' performance under the contract also supported the Union's interpretation of Section 9. The Arbitrator noted that on two occasions involving issues raising a possible deviation from the Califano policy, the parties negotiated over the deviations and agreed to memoranda of understanding setting forth special smoking rules for certain segments of the bargaining unit. Accordingly, the Arbitrator concluded that the parties' agreement obligated the Agency to negotiate with the Union if it wished to deviate from the Califano policy on smoking and that the Agency violated the agreement when it unilaterally prohibited smoking. The Arbitrator further concluded that because the Union had not waived its right to bargain, the Agency also violated section 7116(a)(5) and (1) of the Statute by its conduct.
As to the remedy, the Arbitrator found that a bargaining order was clearly warranted. The Arbitrator also found that a status quo ante remedy was appropriate at 600 West Madison, which would allow the 40 employees at that location to smoke wherever they had been allowed to smoke prior to the 1988 ban on smoking, subject to the conditions contained in the Califano policy. The Arbitrator concluded that this remedy was appropriate despite the existence of a prohibition on smoking in the AFGE agreement covering other employees at that site.
The Arbitrator then found that the application of the Califano policy to 105 West Adams would not restore the status quo ante because the Califano policy never existed at that location. The Arbitrator found that the restoration of the Califano policy would not restore the status quo ante for two groups of employees who were covered by separate memoranda of understanding that placed greater restrictions on smoking than the Califano policy. He also concluded that it would also not necessarily restore the status quo ante for other bargaining unit employees because of changed conditions in the new location, such as changes in the relative locations of employees' work stations at 105 West Adams.
Instead of a status quo ante remedy, the Arbitrator ordered the Agency to designate at 105 West Adams at least two areas for every five floors on which bargaining unit employees work as areas where bargaining unit employees will be permitted to smoke. The Arbitrator found that designated smoking areas provide "an accommodation which approximates the accommodation that had been worked out in practice through the [Califano] policy at the former locations and restores the parties to conditions which approximate the conditions under which they would have approached the negotiations had the [Agency] not breached the contract or committed an unfair labor practice." Id. at 19. The Arbitrator retained jurisdiction for a period of thirty days during which time either party could request that he resolve any disputes over implementation of the remedy.
III. First Exception
A. Positions of the Parties
The Agency contends that the Arbitrator exceeded his authority because only the Authority is authorized under the Statute to find that a Federal agency has committed an unfair labor practice. The Agency argues that the Arbitrator committed "reversible error" when he found that the Agency committed unfair labor practices because the Arbitrator's jurisdiction is limited solely to interpreting the relevant contract provisions. Exceptions at 4. Moreover, the Agency contends that neither party submitted to the Arbitrator the question of whether an unfair labor practice was committed by the Agency.
The Union contends that the Agency's exception is contrary to the language of the Statute, Authority precedent, and the fact that throughout the proceedings the Agency acknowledged that the Union's grievance alleged a section 7116(a)(1) and (5) violation.
B. Analysis and Conclusions
We reject the Agency's contention that an arbitrator has no authority to determine whether a Federal agency has committed an unfair labor practice. Section 7103(a)(9)(C)(ii) of the Statute defines the term "grievance" broadly to include "any claimed violation . . . of any law, rule, or regulation affecting conditions of employment[.]" Thus, an employee or union may allege in a grievance that an agency violated any law, including the Statute. Indeed, section 7123(a)(1) of the Statute contemplates the arbitration of such grievances by precluding judicial review of Authority decisions in arbitration decisions, unless the decision involves an unfair labor practice under the Statute. See Social Security Administration, Office of Hearings and Appeals, Kansas City, Missouri and American Federation of Government Employees, Local 1336, 29 FLRA 1285, 1287 (1987).
To the extent that the Agency is contending that the Arbitrator resolved an issue not properly before him, we reject that contention. In the absence of a stipulation of the issue to be resolved, an arbitrator's formulation of the issue is accorded substantial deference. See, for example, U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 36 FLRA 217, 221-22 (1990). In this case, not only did the Arbitrator frame the issue before him as one involving whether the Agency violated the Statute, but the Union also alleged such a violation.
Accordingly, we find that the Agency's exception provides no basis for finding the award deficient.
IV. Second Exception
A. Positions of the Parties
1. The Agency
The Agency contends that the Arbitrator exceeded his authority by imposing a remedy that does not reestablish the status quo ante, and instead creates a new smoking environment. Thus, the Agency argues that the Arbitrator engaged in interest, rather than rights, arbitration in violation of section 7119 of the Statute. The Agency asserts that by mandating a smoking environment at 105 West Adams where none existed before, the Arbitrator went far beyond adjudicating the contractual dispute that he was empowered to decide.
The Agency contends that this portion of the remedy severely limits the negotiating options of the Agency and, to its knowledge, has never been imposed in any other Federal building. The Agency claims the designated smoking areas "saddled the employer with a smoking negotiation baseline which mandates potential disastrous health consequences for hundreds of HHS Region V employees." Exceptions at 12. The Agency argues that by imposing smoking areas at 105 West Adams, the Arbitrator deprived the employer of any chance to engage in meaningful negotiations and usurped the authority of the FSIP.
The Agency further contends that the improper scope of the remedy imposed by the Arbitrator affects 1,500 nonunit employees at 600 West Madison and members of the public who visit HHS work areas in both buildings. The Agency also asserts that at the time the employees in question moved into 600 West Madison, the smoking ban at that location was in effect. Therefore, the Agency contends that a prohibition on smoking is the status quo ante at 600 West Madison.
2. The Union
The Union contends that the Arbitrator was within his remedial discretion in fashioning his remedy. The Union notes that under Authority case law, an arbitrator has great latitude in fashioning remedies and that the Authority has held, absent special circumstances, that a status quo ante remedy is warranted where management changes a negotiable condition of employment, such as a smoking policy, without bargaining. An arbitrator, the Union continues, exceeds his broad authority to fashion remedies only where he decides an issue not submitted by the parties or awards relief to individuals not encompassed by the grievances. The Union contends that in this case the Arbitrator's award was "unquestionably" within his remedial discretion. Opposition at 8.
The Union cites in support of its position U.S. Department of Housing and Urban Development, Los Angeles Area Office, Region IX, Los Angeles, California and American Federation of Government Employees, Local 2403, AFL-CIO, 35 FLRA 1224 (1990) (HUD, LA). In that case, the agency contended that an arbitrator's award of a private union office was beyond the arbitrator's authority. The arbitrator had found that if the agency had not relocated to a new building, the union would have been entitled to a private office. The award required the agency to provide a private office in the new building although the union had never had one in that building. The Authority determined that the issue of union office space was a negotiable matter and the central issue was whether the union was entitled to a private office under the agreement. Accordingly, the Authority found that the arbitrator had not exceeded his remedial discretion.
The Union contends that in this case the parties granted to the Arbitrator the authority to frame the issues, thereby giving him the power to determine the scope of an appropriate remedy. The Union asserts that the substance of smoking policies is fully negotiable and the Arbitrator's "remedy bears a reasonable relationship to the issue because it gives effect to the collective bargaining agreement while at the same time recognizing the reality of the changes wrought since the [Agency's] violations occurred." Opposition at 10. The Union contends that under the analysis set forth in HUD, LA, the Arbitrator's award relates to the properly framed issues before the Arbitrator and is restricted to individuals encompassed in the grievance. Further, the Union contends that the award, as it relates to 600 West Madison, constitutes the status quo ante consistent with the Authority's decision in Department of the Navy, Puget Sound Naval Shipyard, Bremerton, Washington, 35 FLRA 153 (1990) (Puget Sound). In that case, the agency asserted that a return to the status quo ante would subject employees to a known health risk. The Authority rejected that argument and ordered recision of the new policy and reinstatement of the previous policy.
Further, the Union asserts, with regard to the Agency's contention that the award affects non-bargaining unit employees, that the Arbitrator properly limited his award to bargaining unit employees. The Union argues that the Arbitrator declined to rule on an interpretation of another collective bargaining agreement, which would clearly have exceeded his authority, and he avoided the error of the arbitrator in General Services Administration, Region VII, Fort Worth, Texas and American Federation of Government Employees, Council 236, 35 FLRA 1259 (1990) (GSA), where the award ordered the agency to allow non-bargaining unit employees to smoke. Accordingly, the Union contends that the Agency has not shown that the Arbitrator abused his remedial discretion.
B. Analysis and Conclusions
We conclude that the Arbitrator did not exceed his authority with respect to the remedies ordered. An arbitrator exceeds his or her authority when, among other things, the arbitrator resolves an issue not submitted or awards relief to persons who are not encompassed within the grievance. See U.S. Department of the Treasury, Internal Revenue Service, Philadelphia Service Center, Philadelphia, Pennsylvania and National Treasury Employees Union, Chapter 71, 41 FLRA 710, 723 (1991). Arbitrators have great latitude in fashioning remedies. Id. at 724; HUD, LA, 35 FLRA at 1229.
The issue before the Arbitrator, as framed by the Arbitrator in the absence of a stipulated issue, was whether the Agency violated the parties' agreement and the Statute when it unilaterally implemented a smoking ban at its facilities without bargaining with the Union on the substance of that decision and, if so, what was the appropriate remedy. We conclude that the remedies ordered by the Arbitrator are directly responsive to the issues framed by him and to his conclusion that the Agency violated the parties' agreement and committed an unfair labor practice. In finding that the Agency committed an unfair labor practice, the Arbitrator ordered a remedy designed to cure such a violation.
The Authority has held that remedies for unfair labor practices under the Statute should, like those under the National Labor Relations Act, be "'designed to recreate the conditions and relationships that would have been had there been no unfair labor practice.'" United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 444-45 (1990) (Justice) (quoting Local 60, United Brotherhood of Carpenters & Joiners v. NLRB, 365 U.S. 651, 657 (1961) (Harlan, J. concurring)). The Authority further found in Justice that remedies "should be designed to 'restore, so far as possible, the status quo that would have obtained but for the wrongful act'" and that "remedies must effectuate the policies of the Statute." 35 FLRA at 445.
The Arbitrator directed bargaining and ordered the return to the status quo ante for unit employees located at the Agency's 600 West Madison location. Further, recognizing that restoration of the previous policy for unit employees at 105 West Adams would not be feasible because of the Agency's move to that location, the Arbitrator fashioned a remedy that "approximates the accommodation that had been worked out in practice through the [Califano] policy at the former locations and restores the parties to conditions which approximate the conditions under which they would have approached the negotiations had the [Agency] not breached the contract or committed an unfair labor practice." Award at 19. We conclude that the Arbitrator's remedy effectuates the policies of the Statute by restoring, as far as possible, the status quo that would have obtained but for the Agency's violation and by recreating the conditions and relationships that would have existed had there been no unfair labor practice.
We reject the Agency's contention that the Arbitrator's remedy permitting smoking is improper because it affects nonunit employees and the public by subjecting them to known health risks. The Authority rejected a similar health-based argument in Puget Sound, finding that a return to the former agency policy permitting smoking would effectuate the purposes and policies of the Statute. Moreover, although the Arbitrator's award reestablishes the smoking option at 600 West Madison and permits smoking in designated areas for unit employees at 105 West Adams, it does not seek to control the exposure to smoking for nonunit employees or the public. Compare GSA, 35 FLRA at 1266 (arbitrator exceeded his authority by directing the agency to rescind a memorandum concerning smoking policy for both unit and nonunit employees). Although the addition of smoking areas may have some effect on nonunit employees, the Authority will not find an award that is designed to correct harm suffered by unit employees as a result of improper agency action to be deficient merely because that remedy may affect nonunit employees. National Treasury Employees Union, National Treasury Employees Union Chapter 33 and U.S. Internal Revenue Service, Phoenix District, 44 FLRA 252, 276 (1992).
Accordingly, we find the Arbitrator did not exceed his authority with respect to the remedies ordered.
V. Third and Fourth Exceptions
A. Positions of the Parties
1. The Agency
The Agency contends that the Arbitrator's award is deficient because it is based on "determinative" nonfacts. Exceptions at 2. First, the Agency argues that the Arbitrator's finding that both parties proposed the contested language in Article 30, Section 9 is erroneous and constitutes a gross mistake of fact but for which a different result would have been reached. The Agency contends that the evidence shows that the Union proposed the language that was incorporated into the agreement. Thus, the Agency claims, as a result of making his erroneous factual finding, the Arbitrator did not apply the basic rule of contract construction that ambiguous language should be construed against its drafter. The Agency argues that if the Arbitrator had correctly found that the Union alone had proposed the language in Article 30, Section 9, he would have been required to interpret the admittedly ambiguous smoking provision in favor of the Agency's position.
In a separate exception, the Agency contends that the Arbitrator inconsistently interpreted words within a clause of the parties' collective bargaining agreement, and that this error constitutes a gross mistake of fact but for which a different result would have occurred. The Agency argues that in Article 30, Section 9 the parties agreed to adopt the "'policy, regulations, and guidelines'" of HHS regarding the rights of nonsmokers and smokers. Exceptions at 18 (quoting Article 30, Section 9). The Agency contends that in 1986, when the provision was negotiated, the HHS policy in effect was the Califano policy and there were no HHS regulations pertaining to smoking. The Agency asserts that each word in the clause "policy, regulations and guidelines" should be interpreted consistently, that is, as either current or prospective or as both current and prospective. Because the Union stipulated that HHS has never had smoking regulations, the Agency argues that the word "regulation" must be interpreted prospectively, and accordingly, the word "policy" must also be given a prospective meaning. Therefore, the Agency contends that the parties agreed to be bound by whatever smoking policy the Agency might adopt. The Agency argues that by finding that the parties intended to bargain over changes in current policy, but not over prospective regulations, the award is contrary to the Administrative Procedures Act, and the procedural safeguards contained therein, as well as to the facts of this case.
2. The Union
The Union contends that the Arbitrator did not base his award on nonfacts. As to the Agency's first contention of nonfact, the Union argues that the Agency has not identified a nonfact that can be objectively ascertained because, as the Arbitrator noted, the language of the contract resulted from a series of offers and counter-offers with each proposal refining language contained in the prior proposal. The Union contends that the Agency is simply relitigating the issue before the Authority. Moreover, the Union argues that the Arbitrator cited several grounds for deciding this case. Therefore, the Union contends that "the fact alleged by the [Agency] could not be the fact on which the Arbitrator relied." Opposition at 13 (emphasis in original). Accordingly, the Union asserts that the Agency has not shown that, but for this alleged nonfact, the Arbitrator would have ruled differently.
As to the Agency's second contention of nonfact, the Union argues that the meaning of words cannot constitute an objectively ascertainable fact. Therefore, the Union contends that the Agency's exception should be dismissed as mere disagreement with the Arbitrator's reasoning.
B. Analysis and Conclusions
To establish that an award is based on a nonfact, the party making the allegation must demonstrate that the central fact underlying the award is clearly erroneous but for which a different result would have been reached by the arbitrator. For example, American Federation of Government Employees, AFL-CIO, Local 3615 and U.S. Department of Health and Human Services, Social Security Administration, Office of Hearings and Appeals, 44 FLRA 806, 817 (1992) (AFGE).
The Agency has not demonstrated that the Arbitrator's award is based on a central fact that is clearly erroneous. First, the Agency has not shown that the Arbitrator erred in finding that the agreed-upon version of Article 30, Section 9 was arrived at through a series of offers and counter-offers. Moreover, the Arbitrator additionally based his determination on the construction of Article 30, Section 9 and the course of the parties' performance under the contract. Thus, even if the Arbitrator's finding of fact were erroneous, the Agency has not established that it was the central fact underlying the award. Instead, we conclude that the Agency's exception is an attempt to relitigate the merits of its position and does not demonstrate that the award is deficient. AFGE, 44 FLRA at 817.
We also conclude that the Agency's fourth exception does not establish that the award is based on nonfact. As the Authority has stated, disagreement with an arbitrator's interpretation of a contract cannot be challenged as a nonfact. Rather, the exception constitutes mere disagreement with the Arbitrator's findings and conclusions and his interpretation of the parties' agreement. Id. at 818. Moreover, with regard to the Agency's contention that the Arbitrator committed reversible error by allegedly misstating the relative procedural protections required to promulgate policies and regulations, we do not find that this is a central "fact" underlying the award. Rather, we note the Arbitrator's reliance on the weight of the evidence, including the bargaining history, to establish the intent of the parties that the Agency could not change the Califano policy unilaterally.
VI. Fifth Exception
A. Positions of the Parties
The Agency contends that the Arbitrator's award does not draw its essence from the parties' agreement because the Arbitrator did not take into account that the section relating to smoking is a part of the health and safety article. The Agency argues that the Arbitrator's interpretation of the health and safety article was not plausible. The Agency contends that the Arbitrator's analysis ignores: (1) Section 1(A) of Article 30, except for a cursory and conclusory reference; and (2) the fundamental health question directly affecting the lives of every employee at 105 West Adams and 600 West Madison. The Agency asserts that if it implements the award, it would violate the requirement of Section 1(A) that it provide a "healthy work environment."
The Union contends that the Agency's exception represents a mere restatement of the Agency's position that was rejected by the Arbitrator and is simply a disagreement with the Arbitrator's interpretation of the agreement. The Union argues that the Agency's position has been rejected by the court, the Authority, the FSIP, and the Arbitrator.
B. Analysis and Conclusions
To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award: (1) cannot in any rational way be derived from the agreement; or (2) is so unfounded in reason and fact, and so unconnected with the wording and purpose of the agreement, as to manifest an infidelity to the obligation of the arbitrator; or (3) evidences a manifest disregard for the interpretation of the agreement; or (4) does not represent a plausible interpretation of the agreement. See AFGE at 813.
The Agency has not demonstrated that the award fails to draw its essence from the parties' agreement under any of those tests. The Arbitrator found, based on his interpretation of the parties' agreement, the parties' bargaining history, and the course of the parties' performance under the contract that the agreement obligated the Agency to negotiate with the Union when it wished to deviate from the Califano policy on smoking. In responding to the Agency's argument as to Section 1(A), the Arbitrator found that "Section 9 being more specific, certainly . . . should govern over the more general [S]ection [1(A)]." Award at 16 n.6. The Agency has not shown that the Arbitrator's interpretation of the agreement is irrational, implausible, or unconnected to the wording and purpose of the agreement. Instead, the exception constitutes mere disagreement with the Arbitrator's interpretation and application of the agreement. Such disagreement provides no basis for finding the award deficient. AFGE, 44 FLRA at 813.
VII. Sixth Exception
A. Positions of the Parties
The Agency contends that the Arbitrator's decision violates section 7106(a)(1) of the Statute because management's decision to ban smoking is an internal security practice over which bargaining is not required. The Agency argues that the Arbitrator erred in holding that it is not a management right under section 7106(a)(1) of the Statute to control fire safety in the Federal workplace by banning smoking. The Agency asserts that it is management's right to determine its internal security practices so as to attempt to prevent the occurrence of a fire on its premises.
The Union contends that in order to render the parties' contract clause unenforceable, the Agency must show that the clause abrogates a management right. As a prerequisite to negating a contract provision, the Union argues that the Agency must show a sufficient factual link between its goal of safeguarding employees from a particular hazard and its chosen practice. In this case, the Union argues, the Arbitrator found no evidence of any fire dangers specific to the Agency's premises resulting from smoking under the Califano policy or the Union's proposals for designated smoking areas. Therefore, the Union contends that, having failed to show any nexus between its proposals and a "purported" hazard, the Agency cannot meet the burden of showing an abrogation of its rights. Opposition at 16.
B. Analysis and Conclusions
An agency's right to determine its internal security practices under section 7106(a)(1) of the Statute includes the right to determine policies and take actions that are part of its plan to secure or safeguard its personnel and physical property. See, for example, American Federation of Government Employees, Local 1482 and U.S. Department of the Navy, United States Marine Corps Logistics Base, Barstow, California, 40 FLRA 12, 15 (1991). To establish that a particular plan or policy falls within the scope of the right to determine internal security practices, an agency must show that there is a reasonable link between the plan or policy and the security of its operation. See National Federation of Federal Employees, Local 2058 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 1389, 1402 (1991).
The Agency claims that its smoking ban policy is an attempt to prevent the occurrence of a fire on its premises. The Arbitrator found that the only evidence in the record that might support the Agency's position consisted of general statements by the Agency's labor relations officer, who never claimed any expertise in fire prevention, that smokers are more likely to cause fires than nonsmokers. The Arbitrator found that there was no evidence of any fire dangers specific to the Agency's premises resulting from smoking under the Califano policy or the Union's proposals. Thus, the Arbitrator essentially concluded that the Agency failed to establish a link between the Agency's policy and its specific security concern.
We have reviewed the record before us, including the Agency's brief in support of its exception. We find that the Agency has presented no specific evidence that establishes a reasonable link between its no smoking policy and the security of its operation. The Agency has presented no evidence of any fire dangers to its premises resulting from smoking under the Califano policy or the Union's proposals. Further, the Agency has presented no expert evidence establishing that smoking in the workplace is a particular fire hazard, particularly where there is no allegation that the employees are working near or with flammable or other dangerous materials. Accordingly, we deny the Agency's exception that the award is contrary to its management's right to determine its internal security practices under section 7106(a)(1) of the Statute.
VIII. Seventh Exception
A. Positions of the Parties
The Agency contends that the FSIP has consistently upheld the Federal employer's position in banning indoor smoking in Federal premises. The Agency argues that because the Arbitrator's award imposing indoor smoking is inconsistent with such holdings, that award is contrary to a primary purpose of the Civil Service Reform Act of 1978, which requires a consistency of result by different entities empowered to hear the same issue.
The Union contends that the Agency does not cite any ground in support of this exception recognized in the Statute or regulations governing review of an arbitrator's award. The Union argues that an arbitrator's authority is to interpret the existing collective bargaining agreement while the FSIP's role is to resolve impasses in negotiations. The Union contends that the Agency's "true complaint" is that the Arbitrator enforced an agreement that the Agency wants to repudiate. Opposition at 17. The Union also argues that the Authority has not hesitated to enforce agreements to provide smoking facilities as a proper remedy.
B. Analysis and Conclusions
We find that the Agency's exception provides no basis for finding the award deficient. The issue before the Arbitrator was whether the Agency violated the terms of the parties' agreement and the Statute when it unilaterally imposed a smoking ban at its facilities. The FSIP would not, and could not, entertain such an issue because the FSIP's role under the Statute is to "provide services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses." 5 U.S.C. ° 7119(a). Accordingly, the Agency's argument fails. Moreover, in resolving similar issues under the unfair labor practice provisions of the Statute, the Authority has ordered remedies that have included the restoration of indoor smoking areas. For example, U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. and U.S. Department of Justice, Immigration and Naturalization Service, Portland, Maine District Office, Portland, Maine and Immigration Service, St. Albans Sub-Office, St. Albans, Vermont, 43 FLRA 241, 251-52 (1991).
The Agency's exceptions are denied.
(If blank, the decision does not have footnotes.)
1/ The American Federation of Government Employees (AFGE) is the exclusive representative of certain Social Security Administration (SSA) employees located at 600 West Madison. The SSA and AFGE are parties to a collective bargaining agreement that provides for no smoking at that site.
2/ Article 30 is entitled "Health and Safety." Section 9 provides: "The parties to this Agreement adopt the policy, regulations and guidelines of the Department regarding the rights of nonsmokers and smokers." Award at 2.
3/ On May 22, 1988, a multiregional collective bargaining agreement between the NTEU and HHS took effect and superseded the local agreement between the Union and the Agency in Region V. The new contract did not address smoking expressly. The parties agreed to resolve the smoking issue at the local level.
4/ Section 1 of Article 30 provides:
A. The [Agency] will provide a safe and healthy work environment for employees.
B. The [Agency] will adopt to the maximum extent possible the General Standards of the Occupational Safety and Health Administration within its facilities.
Id. at 2.