American Federation of Government Employees, Local 2327 (Union) and Department of Health, Education, and Welfare, Social Security Administration (Activity) 



[ v05 p189 ]
05:0189(23)AR
The decision of the Authority follows:


 5 FLRA No. 23
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 2327
 Union
 
 and
 
 DEPARTMENT OF HEALTH, EDUCATION,
 AND WELFARE, SOCIAL SECURITY
 ADMINISTRATION
 Activity
 
                                            Case No. 0-AR-136
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON AN EXCEPTION TO THE AWARD OF
 ARBITRATOR JOSEPH M. LEIB FILED BY THE UNION UNDER SECTION 7122(A) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C
 7122(A)).
 
    ACCORDING TO THE ARBITRATOR'S AWARD, THE DISPUTE IN THIS MATTER AROSE
 WHEN FURNITURE ON THE FIRST FLOOR OF THE ACTIVITY'S BUILDING WAS PAINTED
 OVERNIGHT CAUSING PAINT ODOR AND FUMES TO BE PRESENT IN THE TWO-STORY
 STRUCTURE ON THE SUBSEQUENT DAY.  A NUMBER OF EMPLOYEES REPORTED TO
 MANAGEMENT THAT THE PRESENCE OF THE PAINT ODOR AND FUMES WAS CAUSING
 THEM TO EXPERIENCE BURNING EYES, NAUSEA, DIZZINESS AND OTHER SYMPTOMS OF
 PHYSICAL DISCOMFORT.  MANAGEMENT OFFICIALS ON THE FIRST AND SECOND
 FLOORS ATTEMPTED TO ELIMINATE THE PROBLEM BY ADJUSTING THE BUILDING'S
 AIR CONDITIONING SYSTEM AND BY ALLOWING EMPLOYEES TO OPEN WINDOWS AND/OR
 TEMPORARILY LEAVE THEIR WORK STATIONS.  WHEN THESE REMEDIAL MEASURES
 FAILED TO AMELIORATE THE PROBLEM, EMPLOYEES WERE TOLD THAT THEY COULD
 LEAVE WORK FOR THE DAY AND THAT THEIR ABSENCES WOULD BE CHARGED TO
 EITHER SICK LEAVE OR ANNUAL LEAVE (AT THE EMPLOYEE'S DISCRETION).
 
    AS A RESULT OF THE ACTIVITY'S ACTIONS ON THE DAY IN QUESTION, A
 NUMBER OF GRIEVANCES WERE FILED.  THOSE GRIEVANCES GENERALLY ALLEGED
 THAT THE ACTIVITY VIOLATED CERTAIN PROVISIONS OF THE COLLECTIVE
 BARGAINING AGREEMENT BETWEEN THE PARTIES WHEN ON THE DAY IN QUESTION IT
 FAILED TO EVACUATE THE BUILDING AND GRANT ADMINISTRATIVE LEAVE TO THE
 EMPLOYEES WHO BECAME ILL DUE TO THE PRESENCE OF PAINT ODOR AND FUMES.
 /1/ THE GRIEVANCES WERE ULTIMATELY SUBMITTED TO ARBITRATION.
 
    THE ARBITRATOR DETERMINED THE CRITICAL QUESTION UPON WHICH HIS AWARD
 WOULD TURN TO BE THAT OF "HOW BAD THE SITUATION (IN THE OFFICE BUILDING)
 WAS." CONCLUDING THAT THE BALANCE OF THE TESTIMONY "TILTS IN FAVOR OF
 THE EMPLOYER," THE ARBITRATOR OBSERVED:
 
    (THE BRANCH MANAGER) HAD THE RESPONSIBILITY TO DETERMINE WHETHER OR
 NOT THE OFFICE SHOULD
 
    BE CLOSED.  HER DECISIONS TO PERMIT EMPLOYEES TO MOVE ABOUT AS
 NECESSARY, TO KEEP THE OFFICE
 
    OPEN WITH AT LEAST A SKELETON STAFF TO SERVE THE PUBLIC, AND TO GRANT
 SICK LEAVE, WHERE
 
    "JUDGMENT" DECISIONS, MADE IN GOOD FAITH, ON THE BASIS OF THE FACTS
 AS SHE PERCEIVED THEM
 
    (SOMETHING AKIN TO THE "JUDGMENT CALL" OF AN UMPIRE IN A BASEBALL
 GAME).  THE SUPERVISORY
 
    STAFF WERE NOT CALLOUS, NOR DID THEY DISREGARD THE EMPLOYEES'
 COMPLAINTS.  ON THE CONTRARY,
 
    THEY WERE SENSITIVE TO THE SITUATION AND DID WHAT THEY COULD.
 
    HAVING SO OBSERVED, THE ARBITRATOR CONCLUDED THAT UNDER ALL THE
 CIRCUMSTANCES ATTENDANT TO THE INCIDENT AT ISSUE, THE ACTIVITY "DID NOT
 VIOLATE THE CONTRACT" AND CONSEQUENTLY DENIED THE GRIEVANCE.
 
    THE UNION FILED AN EXCEPTION TO THE ARBITRATOR'S AWARD UNDER SECTION
 7122(A) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE /2/
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS, 5 CFR PART 2425.
  THE AGENCY FILED AN OPPOSITION.
 
    THE QUESTION BEFORE THE AUTHORITY IS WHETHER, ON THE BASIS OF THE
 UNION'S EXCEPTION, THE ARBITRATOR'S AWARD IS DEFICIENT BECAUSE IT IS
 CONTRARY TO ANY LAW, RULE, OR REGULATION, OR ON OTHER GROUNDS SIMILAR TO
 THOSE APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR LABOR-MANAGEMENT
 RELATIONS CASES.
 
    IN ITS EXCEPTION THE UNION CONTENDS THAT THE ARBITRATOR'S AWARD FAILS
 TO DRAW ITS ESSENCE FROM THE COLLECTIVE BARGAINING AGREEMENT.  IN
 SUPPORT OF THIS EXCEPTION, THE UNION ASSERTS THAT DESPITE ITS RELIANCE
 UPON THE LANGUAGE OF ARTICLES 22 AND 37 OF THE AGREEMENT, BOTH AT THE
 HEARING AND IN ITS POST-HEARING BRIEF, THE ARBITRATOR IN HIS OPINION
 FAILED TO MENTION EITHER PROVISION.  THEREFORE, THE UNION ASSERTS THAT
 THE AWARD SHOULD BE REVERSED AND THE RELIEF ORIGINALLY SOUGHT BY THE
 GRIEVANTS GRANTED.  ALTERNATIVELY, THE UNION ASKS THAT THE AWARD BE
 REVERSED AND THE DISPUTE REMANDED TO ARBITRATION BEFORE ANOTHER
 ARBITRATOR.
 
    THE UNION'S EXCEPTION, THAT THE AWARD FAILS TO DRAW ITS ESSENCE FROM
 THE COLLECTIVE BARGAINING AGREEMENT, STATES A GROUND ON WHICH THE
 AUTHORITY WILL FIND AN AWARD DEFICIENT UNDER SECTION 7122(A)(2) OF THE
 STATUTE.  UNITED STATES ARMY MISSILE MATERIEL READINESS COMMAND
 (USAMIRCOM) AND AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1868,
 AFL-CIO, 2 FLRA NO. 60 (1980).  THE AUTHORITY HAS STATED THAT IN ORDER
 TO FIND AN AWARD DEFICIENT ON THIS GROUND, CONSISTENT WITH THE STANDARD
 APPLIED BY FEDERAL COURTS IN PRIVATE SECTOR CASES, IT MUST BE
 DEMONSTRATED THAT "THE ARBITRATOR'S AWARD CANNOT IN ANY RATIONAL WAY BE
 DERIVED FROM THE AGREEMENT;  OR IS SO UNFOUNDED IN REASON AND FACT, SO
 UNCONNECTED WITH THE WORDING AND PURPOSE OF THE COLLECTIVE BARGAINING
 AGREEMENT AS TO MANIFEST AN INFIDELITY TO THE OBLIGATION OF THE
 ARBITRATOR;  OR THAT IT EVIDENCES A MANIFEST DISREGARD OF THE AGREEMENT;
  OR THAT, ON ITS FACE, THE AWARD DOES NOT REPRESENT A PLAUSIBLE
 INTERPRETATION OF THE CONTRACT." OVERSEAS EDUCATION ASSOCIATION AND
 OFFICE OF DEPENDENT SCHOOLS, DEPARTMENT OF DEFENSE, 4 FLRA NO. 17(1980).
 
    IN THE PRESENT CASE THE UNION ALLEGES THAT THE ARBITRATOR'S AWARD
 DOES NOT DRAW ITS ESSENCE FROM THE AGREEMENT BECAUSE THE ARBITRATOR
 FAILED TO MAKE SPECIFIC REFERENCE IN HIS OPINION TO THE CONTRACT
 PROVISIONS IN DISPUTE.  HOWEVER, IT IS WELL ESTABLISHED THAT AN
 ARBITRATOR NEED NOT DISCUSS THE SPECIFIC AGREEMENT PROVISIONS INVOLVED,
 AND THE FACT THAT THE OPINION ACCOMPANYING AN AWARD DID NOT MENTION SUCH
 PROVISIONS DOES NOT ESTABLISH THAT THE ARBITRATOR DID NOT RULE UPON
 THEM.  "ON ITS FACE THE AWARD SHOULD ORDINARILY REVEAL THAT IT FINDS ITS
 SOURCE IN THE CONTRACT AND THOSE CIRCUMSTANCES OUT OF WHICH COMES THE
 "'COMMON LAW OF THE SHOP;'".  . .  . (W)HEN IT REASONABLY SATISFIES
 THESE REQUIREMENTS . . . IT IS NOT OPEN TO THE COURT TO ASSAY THE LEGAL
 CORRECTNESS OF THE REASONING PURSUED." SAFEWAY STORES V. BAKERY WORKERS
 LOCAL 111, 390 F.2D 79, 82 (5TH CIR. 1968).  "THERE IS NO RULE OF LAW
 WHICH REQUIRES AN ARBITRATOR TO WRITE OPINIONS WITH GREAT SPECIFICITY AS
 A COURT OF LAW.  . . . (O)NE CANNOT DRAW THE CONCLUSION THAT THE
 ARBITRATOR DID NOT COVER A SPECIFIC ITEM IN AN AGREEMENT WHERE THAT ITEM
 IS NOT SPECIFICALLY MENTIONED." GRAHAM V. ACME MARKETS, INC., 299
 F.SUPP. 1304, 1308 (E.D. PA. 1969).  "(T)HE FACT THAT AN OPINION DID NOT
 MENTION (AN) ISSUE DOES NOT ESTABLISH THAT THE ARBITRATOR DID NOT RULE
 UPON IT." MEAT CUTTERS LOCAL 195 V. CROSS BROTHERS MEAT PACKERS, INC,,
 372 F. SUPP. 1274, 1277 (E.D. PA. 1974).  THUS, THE UNION'S ASSERTION
 THAT THE ARBITRATOR NEGLECTED TO MAKE SPECIFIC REFERENCE TO THE CONTRACT
 PROVISIONS IN DISPUTE FAILS TO DEMONSTRATE THAT THE ARBITRATOR'S AWARD,
 FINDING "(T)HE EMPLOYER DID NOT VIOLATE THE CONTRACT," DOES NOT DRAW ITS
 ESSENCE FROM THE AGREEMENT.  THEREFORE, THE UNION'S EXCEPTION DOES NOT
 PROVIDE A BASIS FOR FINDING THE AWARD DEFICIENT UNDER 5 U.S.C. 7122 AND
 SECTION 2425.3 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    FOR THE FOREGOING REASONS, AND PURSUANT TO SECTION 2425.4 OF THE
 AUTHORITY'S RULES AND REGULATIONS, WE HEREBY SUSTAIN THE ARBITRATOR'S
 AWARD.
 
    ISSUED, WASHINGTON, D.C., FEBRUARY 17, 1981
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ IN ITS EXCEPTION TO THE ARBITRATOR'S AWARD, THE UNION CITES BOTH
 ARTICLE 22, SECTION 7 AND ARTICLE 37, SECTION 1 OF THE PARTIES'
 AGREEMENT AS BEING RELEVANT TO THIS DISPUTE.  ACCORDING TO THE UNION,
 THOSE PROVISIONS READ AS FOLLOWS:
 
    ARTICLE 22, SECTION 7
 
    THE EMPLOYER WILL WORK WITH APPROPRIATE AUTHORITIES TO ASSURE CLEAN,
 INSECT FREE, HEALTHY
 
    AND SAFE WORKING CONDITIONS AND FACILITIES.  IN PARTICULAR, LIGHTING
 WILL BE CREATED, IMPROVED
 
    AND THEN MAINTAINED TO PREVENT EYESTRAIN AT ANY WORK LOCATION.
 WHENEVER THE OFFICE
 
    VENTILATION SYSTEM, HEATING OR AIR-CONDITIONING SYSTEM, OR NOISE
 ABATEMENT SYSTEM IS
 
    MALFUNCTIONING OR NOT OPERATING ADEQUATELY TO MAINTAIN A HEALTHY AND
 COMFORTABLE RANGE OF
 
    TEMPERATURE MOISTURE CONTENT, AND FRESH AIR, FRESH WATER, BATHROOM
 FACILITIES AND COMFORTABLE
 
    LIGHTING, THEN ADMINISTRATIVE LEAVE MAY BE GRANTED ALL EMPLOYEES
 UNLESS THE CONDITION IS
 
    CORRECTED WITHIN REASONABLE TIME.
 
    ARTICLE 37, SECTION 1
 
    THE EMPLOYER WITHIN ITS JURISDICTION SHALL PROVIDE A SAFE AND
 HEALTHFUL WORK PLACE FOR ALL
 
    EMPLOYEES AND WILL COMPLY WITH ALL APPLICABLE REGULATIONS RELATING TO
 THE HEALTH AND SAFETY OF
 
    ITS EMPLOYEES.  ALL EMPLOYEES ARE TO BE ENCOURAGED TO REPORT ANY
 UNSAFE CONDITIONS.  THE
 
    EMPLOYER WILL TAKE IMMEDIATE STEPS TO CORRECT UNSAFE CONDITIONS, WILL
 POST WARNINGS OF THE
 
    CONDITION UNTIL THE CONDITION IS CORRECTED, AND WILL NOT REQUIRE THAT
 THE UNSAFE AREA OR
 
    EQUIPMENT BE USED UNTIL THE UNSAFE CONDITION IS CORRECTED.
 
    /2/ 5 U.S;C. 7122(A) PROVIDES:
 
    (A) EITHER PARTY TO ARBITRATION UNDER THIS CHAPTER MAY FILE WITH THE
 AUTHORITY AN EXCEPTION
 
    TO ANY ARBITRATOR'S AWARD PURSUANT TO THE ARBITRATION (OTHER THAN AN
 AWARD RELATING TO A
 
    M