U.S. Department of Veterans Affairs, Medical Center, Kerrville, Texas and American Federation of Government Employees, Local 2281 (Authority decision, October 16, 1992)

Final FLRA decision. The Authority denied reconsideration of its decision on an arbitral award. Judicial review under 5 U.S.C. § 7123(a) generally does not extend to an Authority order involving an arbitral award under 5 U.S.C. § 7122 unless the order involves an unfair labor practice under 5 U.S.C. § 7116.

Plain-English summary

An arbitrator found that the Kerrville VA medical center lacked enough adequate outdoor smoking shelters under a Federal Service Impasses Panel order incorporated into its union agreement. The award required two additional enclosed, heated, and ventilated shelters and an interim indoor smoking area. The Authority had upheld that award, and the agency asked it to reconsider, citing health risks, costs, and the standard for shelter adequacy. The Authority found that the agency mainly repeated arguments it had already rejected and had not shown extraordinary circumstances. It denied reconsideration, leaving the earlier award in place.

Decision snapshot

• Authority: Panel order incorporated under 5 U.S.C. § 7119(c)(5)(C); reconsideration under 5 C.F.R. § 2429.17.
• Outcome: Agency motion for reconsideration denied; the shelter remedy remains in place.
• Key point: Repeating objections to an arbitration ruling did not justify reconsideration.

Full text (FLRA public release)

[ v46 p97 ]
46:0097(11)AR

The decision of the Authority follows:

46 FLRA No. 11

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

KERRVILLE, TEXAS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES

LOCAL 2281

(Union)

0-AR-2191

(45 FLRA 457 (1992))

ORDER DENYING MOTION FOR RECONSIDERATION

October 16, 1992

Before Chairman McKee and Members Talkin and
Armendariz.

I. Statement of the Case

This matter is before the Authority on the Agency's motion for reconsideration of the Authority's decision in 45 FLRA 457 (1992). The Union did not file an opposition to the Agency's motion. Because the Agency fails to establish that extraordinary circumstances exist which warrant reconsideration of our decision, we will deny the motion.

II. Arbitrator's Award and the Decision in 45 FLRA 457

The Arbitrator held that the Agency's Medical Center had failed to make available at its facilities a sufficient number of adequate outdoor smoking shelters, as required by a decision and order of the Federal Service Impasses Panel (the Panel) and as incorporated into the parties' collective bargaining agreement pursuant to section 7119(c)(5)(C) of the Federal Service Labor-Management Relations Statute (the Statute). As a remedy, the Arbitrator directed the Agency to: (1) enclose two additional outdoor shelters that can accommodate twenty persons at one time and provide these two shelters with heating and ventilation equipment; and (2) redesignate part of its canteen as a smoking area until it provides the two additional adequate smoking shelters and gives three days notice that it has done so.

Before the Authority, the Agency contended that the Arbitrator erred in concluding that the outdoor shelters were not adequate under the Panel's precedent. Specifically, the Agency argued that outdoor smoking shelters need to provide only a modicum of protection to the user from local weather conditions. The Agency also contended that the Arbitrator exceeded his authority in ordering a remedy that required a return to indoor smoking pending the required modification of the outdoor shelters. With regard to the latter contention, the Agency argued that because of the health risks of smoking, it would be against public policy to require a return to indoor smoking when it already provides sixteen outdoor smoking shelters, "some of which are fully enclosed, ventilated and heated." 45 FLRA at 464.

The Authority concluded that the award was not deficient in its formulation and application of a standard of adequacy with respect to the outdoor smoking shelters, and that the Arbitrator acted within his remedial discretion in ordering a return to indoor smoking as an interim measure pending the modification of the outdoor shelters. The Authority found that it was not against public policy to require the parties to abide by the results of a dispute submitted to the Panel.

III. Agency's Motion for Reconsideration

The Agency contends that the Authority's decision was "unconscionable" in ordering a return to indoor smoking because "[a] return to smoking indoors, for any period of time, is a retrogressive and antisocial act which flaunts
[sic] government-wide policy, jeopardizes . . . accreditation of the [Medical Center], and subjects patients, employees, visitors, and America's veterans to poisonous [environmental tobacco smoke]." Motion for Reconsideration at 2. The Agency further contends that it is "irrational" to permit the Arbitrator to use a standard of "full or complete protection[,]" rather than "modicum or measure of protection" to determine the adequacy of the outdoor smoking shelters. Id. at 3. Finally, the Agency argues that by requiring that it fully enclose, heat, and ventilate two of the sixteen outdoor shelters, the Authority is enforcing an award that "force[s] the government to waste tens of thousands of taxpayers' dollars to poison veterans, employees, and patents[.]" Id. at 4. The Agency claims that because those outdoor shelters are attached to the Medical Center, full enclosure would bring environmental tobacco smoke back into the Medical Center.

IV. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Agency has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 45 FLRA 457.

The Agency again argues, as it did in its exceptions to the Arbitrator's award, that the award is against public policy insofar as it orders the resumption of indoor smoking for any period of time, and that the Arbitrator applied the wrong standard in assessing the adequacy of the outdoor shelters. In 45 FLRA 457, we addressed and rejected these arguments. Accordingly, we conclude that these arguments in the motion for reconsideration constitute nothing more than disagreement with our findings and conclusions in 45 FLRA 457 and are, therefore, merely an attempt to relitigate the merits of our decision. See U.S. Department of the Interior, Bureau of Reclamation, Great Plains Region and International Brotherhood of Electrical Workers, Local 1759, 43 FLRA 314 (1991).

The Agency also claims that it would waste money and endanger the health of its employees, patients, and others if it complies with the requirement of the award that it fully enclose two of the outdoor shelters. We conclude that this argument does not raise extraordinary circumstances that warrant reconsideration of our decision. As we concluded in 45 FLRA 457, the Arbitrator's formulation and application of a standard of adequacy was not deficient. Consequently, his award is not deficient insofar as it applies the standard to require two additional enclosed shelters. Rather, it merely requires the Agency to abide by the Panel decision, as interpreted by the Arbitrator. With regard to the Agency's contention that enclosing the shelters will cause smoke to enter the Medical Center, we note that, as the Agency conceded before the Arbitrator, some of its existing outdoor shelters are fully enclosed, apparently without endangering the health of the occupants of the Medical Center. We also note that the award permits the parties to agree to enclose different outdoor shelters than those designated by the Arbitrator, which allows some flexibility in creating adequate outdoor smoking shelters without exposing nonsmokers to dangerous fumes.

V. Order

The Agency's motion for reconsideration is denied.

FOOTNOTES:
(If blank, the decision does not
have footnotes.)