The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER OF COURT
Pending before the Court are the DEFENDANTS'/COUNTERCLAIMANTS' MOTION FOR SUMMARY JUDGMENT (Document No. 12) filed by the Union and the MOTION FOR SUMMARY JUDGMENT (Document No. 14) filed by Plaintiff Armstrong County Memorial Hospital (the "Hospital"). The cross-motions have been thoroughly briefed (Document Nos. 13, 16, 19, 20) and the parties have submitted a Joint Appendix containing the relevant exhibits, for which the Court is deeply appreciative. The motions are ripe for disposition.
Factual and Procedural Background
This case arose from the Hospital's efforts to become a "Tobacco Free Campus." In 1992, the Hospital implemented a "no smoking" policy within its buildings, except for the psychiatric unit, which policy remained in effect for the next sixteen years. Under the policy, employees were permitted to smoke outside the buildings in designated smoking areas, including a "butt hut," and in their personal vehicles while on Hospital property. Over time, enforcement of the designated smoking areas became lax, and the Hospital received complaints about cigarette smoke blowing into patients' rooms.
Accordingly, in November 2008, the Hospital informed the Union of its intent to ban smoking entirely on all of its property by means of a "Tobacco Free Campus" policy, effective January 1, 2009. At no point did the Hospital attempt to negotiate a change to the existing practice with the Union. On November 12, 2008, the Union filed a grievance, No. 2008-81. On November 26, 2008, the parties met to discuss the policy change but did not resolve the grievance. The Hospital implemented the "Tobacco Free Campus" policy as scheduled, and the Union submitted the grievance to arbitration.
The Hospital and Union are parties to a collective bargaining agreement ("CBA") which was executed on June 23, 2008. As relevant to this case, the CBA provides as follows:
ARTICLE 4 -- MANAGEMENT RIGHTS
4.01 The functions and responsibilities of Management are retained and vested exclusively in the Employer. The rights reserved in the Employer include all matters of inherent managerial policy plus those necessitated by the unique nature of the Employer's operations. In the exercise of these rights, the Employer agrees that it will not violate the specific provisions of this Agreement.
4.02 The Employer reserves the right to establish, revise and administer reasonable policies and procedures, . . . to control and regulate the use of facilities, supplies, equipment, and other property of the Employer; . . . to make or change reasonable Employer rules, regulations, policies and practices, provided the Employer gives advance notice to the Union; . . . to establish or change standards; . . . and otherwise to help the Employer attain and maintain full operating efficiency and effectiveness of the Hospital to ensure that the parties promote the highest quality patient care and treatment possible.
4.05 The management rights set forth in this Article are by way of example and not by way of limitation and specifically are not limited by existing or "prior practices" or "side agreements" which existed prior to this Agreement and are not incorporated herein.
23.01 The Employer will make every effort to maintain its facilities and equipment in such physical condition so as to provide a safe and healthy work environment . . . .
The CBA established a grievance procedure, to be followed by arbitration, with the arbitrator's decision to be "final and binding upon both parties." On the other hand, in Article 14.04, the CBA states: "The arbitrator shall have no power to add to, subtract from, or modify any provision of this Agreement."
Arbitrator William J. Miller, Jr. was selected by the parties. He conducted a hearing in September 2009 and issued a 21-page Opinion and Award on October 22, 2009 (the "Arbitration Award"). In the "considered opinion" of the arbitrator, a "past practice" had been established "regarding employees having a designated location to smoke." Award at 20. The Arbitrator then reasoned: "The employees had come to expect they would have a specific location to smoke, and in my considered opinion, this expectation rose to the level of a protected local working condition." Id. The Arbitrator recognized that the Hospital had authority to unilaterally implement certain policies, and that the "Tobacco Free Campus" policy was well-meaning. Nevertheless, the Arbitrator concluded that the Tobacco Free Campus was unreasonable. As he explained: "The problem with the policy is that it fails to make a reasonable accommodation for employees who previously had a designated location to smoke." Id. at 21.
Upon receipt of the Arbitration Award, the Hospital commenced this lawsuit. It asks the Court to vacate the Award pursuant to the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, and the Federal Arbitration Act, 9 U.S.C. § 10. The Union's answer, ...