OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
U.S. DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1963
Case No. CH-CA-40344
Thornton E. Cherry, Esq. and
For the Respondent
Susanne S. Matlin, Esq.
For the General Counsel
Before: SALVATORE J. ARRIGO
Administrative Law Judge
Statement of the Case
This case arose under the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code, 5 U.S.C.
section 7101, et seq. (herein the Statute).
Upon an unfair labor practice charge having been filed by
the captioned Charging Party, herein sometimes AFGE, against the
captioned Respondent, the General Counsel of the Federal Labor
Relations Authority, herein the Authority, by the Regional Director
for the Chicago Region, issued a Complaint and Notice of Hearing
alleging Respondent violated section 7116(a)(1) and (8) of the
Statute by refusing to comply with the provisions of a final and
binding arbitration award. The Complaint and Notice of Hearing was
served on various representatives of Respondent and Respondent, by
Jerry Willison, Respondent's Acting Medical Center Director, filed
an Agency Response to Complaint and Notice of Hearing. In the
Response Respondent admitted the factual allegations of the
Complaint and offered an "explanation" of its position.
Subsequently, counsel for the General Counsel filed a Motion
for Summary Judgment and supporting documents with the Regional
Director for the Chicago Regional Office and on August 18, 1994 the
matter was transferred to the Office of Administrative Law Judges
for ruling pursuant to section 2423.22(b) of the Authority's Rules
and Regulations. By Order of Chief Administrative Law Judge John H.
Fenton dated August 23, 1994, the parties were notified that any
additional pleadings or briefs in this case must be filed by
September 7, 1994, and thereafter the record would be closed.
Counsel for the General Counsel filed a brief in support of the
Motion for Summary Judgment and counsel for Respondent filed an
Agency Response to the Motion for Summary Judgment.
Based upon my review and evaluation of the record before me
I make the following:
Findings of Fact
1. AFGE is the exclusive collective bargaining agent of
Respondent's employees at the Veterans Administration Medical
Center (VAMC), Danville, Illinois.
2. On March 27, 1992, AFGE filed a grievance under the
parties' negotiated grievance procedure concerning Respondent's
implementation of a smoke-free environment policy at VAMC
3. Respondent and AFGE were not able to resolve the
grievance described above and the parties selected arbitrator Anne
L. Draznin to decide the grievance.
4. On May 21, 1993, Arbitrator Draznin issued an opinion
and award in FMCS 92-17184 on the grievance described above. In her
award, Arbitrator Draznin, inter
alia, determined that Respondent had failed
to provide adequate and accessible outdoor smoking shelters when it
implemented its smoke-free policy at VAMC Danville and essentially
ordered Respondent to reopen the indoor designated smoking areas in
Buildings 19, 26, 64, 69, 72, 104, and 125 at VAMC Danville until
the required alterations to the outside shelters were
5. Respondent filed exceptions to Arbitrator Draznin's
May 21, 1993 award with the Authority pursuant to 5 U.S.C. §
6. On December 8, 1993, the Authority in 48 FLRA No. 116
denied Respondent's exceptions to Arbitrator Draznin's May 21, 1993
7. Since May 8, 1993, Respondent has failed to reopen
the indoor smoking areas in Buildings 19, 26, 64, 69, 72, 104, and
125 at VAMC Danville pending completion of the required alterations
to the outside smoking shelters.
8. On February 24, 1994, AFGE filed a timely unfair
labor practice charge in this matter alleging Respondent violated
the Statute by failing to comply with the final and binding
arbitration award of Arbitrator Anne L. Draznin dated May 21,
9. On March 18, 1994, AFGE filed an amended unfair labor
10. On May 4, 1994, the Regional Director for the
Chicago Region of the Federal Labor Relations Authority issued a
Complaint and Notice of Hearing in this matter alleging Respondent
violated section 7116(a)(1) and (8) of the Statute by failing to
comply with the May 21, 1993 arbitration award that became final
and binding on December 8, 1993 after Authority review in Case No.
48 FLRA No. 116.
11. On May 17, 1994, Respondent filed a Response to the
Complaint in this matter (above).
Respondent proceeded to arbitration of a grievance and it
received an award of the Arbitrator which it considered to be
adverse. Exceptions to the award were filed by Respondent to the
Authority and were denied. The gravamen of the Complaint is that
Respondent failed to comply with the Arbitrator's award by
reopening the indoor smoking areas pending completion of the
outside smoking areas. Respondent does not deny this allegation but
avers in its Response that it has installed a substantial number of
substitute outside smoking areas and therefore contends the matter
at issue herein is moot. Respondent also raises matters which were
previously raised and rejected by the Arbitrator and the Authority.
I reject Respondent's defenses raised in its Agency Response and
concluded that at all times relevant Respondent has failed to
comply with the award.(1) Failure to
fully comply with an arbitration award after it is affirmed on
appeal to the Authority fails to comply with the provisions of
section 7122(b) of the Statute in violation of 7116(a)(1) and (8)
of the Statute. United States Army Adjutant
General Publications Center, St. Louis, Missouri, 22 FLRA
200 (1986), cited with approval in Department of
Health and Human Services, Social Security Administration v.
FLRA, 976 F.2d 1409 (D.C. Cir. 1992) at 1413.
Accordingly, I conclude that upon the record before me
Respondent's failure to fully comply with Arbitrator Draznin's
award dated May 21, 1993 violated section 7116(a)(1) and (8) of the
Statute and I grant counsel for the General Counsel's Motion for
Summary Judgment. Therefore, I recommend the Authority issue the
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute,
it is hereby ordered that U.S. Department of Veterans Affairs
Medical Center, Danville, Illinois shall:
1. Cease and desist from:
(a) Failing or refusing to comply with provisions
of section 7122(b) of the Statute by failing and refusing to
implement Arbitrator Anna L. Draznin's May 21, 1993 award.
(b) In any like or related manner, interfering with,
restraining or coercing its employees in the exercise of their
rights assured by the Federal Service Labor-Management Relations
2. Take the following affirmative action in order to
effectuate the purposes and policies of the Federal Service
Labor-Management Relations Statute:
(a) Comply fully with the May 21, 1993 award of
Arbitrator Anne L. Draznin.
(b) Post at its facilities where bargaining unit
employees represented by the American Federation of Government
Employees, Local 1963, are located, copies of the attached Notice
on forms to be furnished by the Federal Labor Relations Authority.
Upon receipt of such forms, they shall be signed by the Director of
the Department of Veterans Affairs Medical Center, Danville,
Illinois and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards
and other places where notices to employees are customarily posted.
Reasonable steps shall be taken to insure that such Notices are not
altered, defaced, or covered by any other material.
(c) Pursuant to section 2423.30 of the Authority's
Rules and Regulations, notify the Regional Director of the Chicago
Region, 55 West Monroe, Suite 1150, Chicago, IL 60603-9729, in
writing, within 30 days from the date of this Order, as to what
steps have been taken to comply herewith.
Issued, Washington, DC, September 26, 1994
SALVATORE J. ARRIGO
Administrative Law Judge
NOTICE TO ALL EMPLOYEES
AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
AND TO EFFECTUATE THE POLICIES OF THE
FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail or refuse to comply with the provisions of
section 7122(b) of the Federal Labor-Management Relations Statute
by failing or refusing to fully implement Arbitrator Anne L.
Draznin's May 21, 1993 award.
WE WILL NOT in any like or related manner, interfere with,
restrain or coerce our employees in the exercise of their rights
assured by the Federal Service Labor-Management Relations
WE WILL comply fully with the May 21, 1993 award of Arbitrator
Anne L. Draznin.
Date: ________________________ By: __________________________________
This Notice must remain posted for 60 consecutive days from the
date of posting and must not be altered, defaced or covered by any
If employees have any questions concerning this Notice or
compliance with any of its provisions, they may communicate
directly with the Regional Director of the Federal Labor Relations
Authority, Chicago Region, 55 West Monroe, Suite 1150, Chicago, IL
60603-9729, and whose telephone number is: (312) 353-6306.
1. With regard to Respondent's argument that due to partial compliance with the award, the issue is moot, see U.S. Department of the Air Force Headquarters, Air Force Logistics Command, Wright Patterson Air Force Base, Ohio, 36 FLRA 524, 534-535 (1990).