15:0296(66)CA - Navy Public Works Center, Norfolk, Virginia and Tidewater Virginia FEMT Council -- 1984 FLRAdec CA



[ v15 p296 ]
15:0296(66)CA
The decision of the Authority follows:


 15 FLRA No. 66
 
 NAVY PUBLIC WORKS CENTER
 NORFOLK, VIRGINIA
 Respondent
 
 and
 
 TIDEWATER VIRGINIA FEDERAL EMPLOYEES
 METAL TRADES COUNCIL, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-2071
 
                            DECISION AND ORDER
 
    The Administrative Law Judge issued the attached Decision in the
 above-entitled proceeding, finding that the Respondent had engaged in
 certain unfair labor practices and recommending that it be ordered to
 cease and desist therefrom and take certain affirmative action.
 Thereafter the Respondent filed exceptions to the Judge's Decision and
 the Charging Party filed an opposition thereto.
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Federal Service Labor-Management Relations
 Statute (the Statute), the Authority has reviewed the rulings of the
 Judge made at the hearing and finds that no prejudicial error was
 committed.  The rulings are hereby affirmed.  Upon consideration of the
 Judge's Decision and the entire record, the Authority hereby adopts the
 Judge's findings, conclusions /1/ and recommended Order, as modified
 herein.  /2/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority hereby orders that the
 Navy Public Works Center, Norfolk, Virginia, shall:
 
    1.  Cease and desist from:
 
    (a) Failing or refusing to comply with the final and binding arbitral
 award in Decision No. F-FMCS-8, dated August 11, 1980.
 
    (b) In any like or related manner interfering with, restraining or
 coercing employees in the exercise of their rights assured by the
 Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Implement the August 11, 1980, award of the Arbitrator in
 Decision No. F-FMCS-8 by paying the affected Power House employees
 covered by the grievance the eight percent environmental differential
 retroactive to March 9, 1975.
 
    (b) Post at its facilities 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 an authorized representative and
 shall be posted and maintained 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 said
 Notices are not altered, defaced, or covered by any other material.
 
    (c) Notify the Regional Director, Region III, Federal Labor Relations
 Authority, in writing, within 30 days from the date of this Order, as to
 what steps have been taken to comply herewith.
 
    Issued, Washington, D.C., July 18, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
                          NOTICE TO ALL EMPLOYEES
 
 PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail or refuse to comply with the final and binding
 arbitral award in Decision No. F-FMCS-8, dated August 11, 1980.
 
    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 Statute.
 
    WE WILL implement the August 11, 1980, award of the Arbitrator in
 Decision No. F-FMCS-8 by paying affected Power House employees covered
 by the grievance the eight percent environmental differential
 retroactive to March 9, 1975.
                                       (Agency or Activity)
                                       By:  (Signature)
 
    Dated:  . . .
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, and must not be altered, defaced or covered by any other
 material.
 
    If employees have any question concerning this Notice, or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Region III, Federal Labor Relations Authority, whose
 address is:  1111 18th Street, NW, Room 700, P.O. Box 33758, Washington,
 D.C. 20033-0758 and whose telephone number is:  (202) 653-8507.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Dennis K. Reischl
    For the Respondent
 
    Sally M. Armstrong, Esq.
    For the Charging Party
 
    Heather Briggs, Esq.
    For the General Counsel
 
    Before:  ALAN W. HEIFETZ
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This proceeding arose pursuant to the Federal Service
 Labor-Management Relations Statute, 5 U.S.C. 7101 et seq., as a result
 of an unfair labor practice charge filed March 9, 1981, with the Federal
 Labor Relations Authority.  Consequently, on July 9, 1981, the Regional
 Director issued a complaint alleging that the Navy Public Works Center,
 Norfolk, Virginia, has failed and refused to comply with an arbitrator's
 award and, by such conduct, has violated Sections 7116(a)(1), (5) and
 (8) of the Statute.  Respondent denies that allegation.
 
    A hearing was held on September 23, 1981, in Norfolk, Virginia, at
 which opening statement were made and documentary evidence and a
 stipulation of facts were entered into the record.  Post hearing briefs
 have been filed by all parties.  Upon the entire record, I make the
 following findings, conclusions and recommended order:
 
                             Findings of Fact
 
    On January 21, 1980, the employees working in Building P-1, the Navy
 Public Works Center Power House, filed a grievance contending that they
 work with and are exposed to airborne asbestos fibers.  Accordingly,
 they sought retroactive hazardous duty pay and an order that appropriate
 protective measures be taken.
 
    The applicable Collective Bargaining Agreement obligates Respondent
 for environmental differential pay under conditions described in
 Appendix J of the Federal Personnel Manual Supplement 532-1.  That
 Appendix provides that a retroactive environmental differential of eight
 percent is to be paid to employees:
 
          working in an area where airborne concentrations of asbestos
       fibers may expose employees to potential illness or injury and
       protective devices or safety measures have not practically
       eliminated the potential for such personal illness or injury.
 
    The matter was submitted to binding arbitration at which evidence was
 adduced, argument presented, and an on-site inspection made by the
 Arbitrator.  On August 11, 1980, the Arbitrator issued an award
 sustaining the grievance "to the extent indicated in the findings." The
 Arbitrator devised a remedy which gave Respondent two alternatives.  The
 first was to negotiate a settlement, compromising on the total
 retroactive amount due.  The Arbitrator stated, in this regard:
 
          The Arbitrator is aware that employees in other Craft units of
       the Public Works Center that work with asbestos are paid the
       environmental differential as a result of negotiations with the
       Union.  These resolutions apparently take into account the fact
       that employee exposure to the hazard varies from time to time.
       This award should encourage, rather than discourage, a negotiated
       settlement for the Power House employees.
 
    Failing a negotiated settlement, the Arbitrator ordered that within
 30 days a scientific sampling of the air be taken in the Power House "so
 as to determine whether concentrations of airborne fibers are present in
 the Power House atmosphere." Further, he ordered that if "such
 concentrations are found to be present, affected Power House employees
 will be paid the eight percent environmental differential retroactive to
 March 9, 1975."
 
    By letter dated August 22, 1980, Respondent notified the Union that
 in regard to the arbitration award, it was Respondent's position that it
 would not negotiate a settlement but, rather, it would elect to conduct
 a study of the ambient air in Building P-1.  Respondent conducted the
 tests on August 25-28 and September 4 and 5, 1980.  The results of the
 tests were then analyzed by Respondent and incorporated into a report.
 
    On September 11, 1980, Respondent advised the Union in writing that
 it would not pay the environmental differential on grounds that:
 
          . . . the exposure levels (as found by the report) are well
       below the OSHA standard, and generally are of the same order or
       magnitude as the background samples.  Therefore, there is no legal
       basis or obligation for payment of environmental differential pay
       to the employees of P-1 who were involved in the grievance . . .
 
    No exceptions to the Arbitrator's award were filed by either party.
 Respondent has continued to refuse to pay the eight percent retroactive
 environmental differential.
 
                    The Arbitrator's Decision and Award
 
    The threshold question to be determined in this case is the nature
 and extent of Respondent's obligation under the Arbitrator's decision
 and award.  To resolve that question requires a limited examination of
 the decision and award.  That inquiry must be limited because, as noted
 previously, no exceptions to the award were filed by either party and,
 in as much as this is an unfair labor practice proceeding, that award is
 not before me for substantive review.  /3/
 
    At the outset of his decision, the Arbitrator noted that the
 grievance contends that the employees are "exposed to airborne asbestos"
 and that they desire to be compensated for "their exposure to Asbestos".
  The grievance did not mention any levels of exposure.
 
    In the "Background" section of his decision, the Arbitrator noted the
 cumulative and carcinogenic effects of asbestos exposure.  He then
 referenced the mandate of the Occupational Safety and Health Act of 1970
 for a national consensus standard and the 1972 Department of Labor
 Asbestos Standard.  He then stated:
 
          Each of these items is, to some degree involved in this
       grievance.  However, it is the exposure to airborne concentrations
       of asbestos fibers that is at the base of the complaint here.
 
    The Arbitrator then discussed the Labor Department's 1972 Standard
 which provided for a reduction in permissible exposure to take place in
 1976.  Prior to the 1976 Standard taking effect, the Labor Department
 proposed an even lower standard, which, for reasons unknown, never
 issued as a final regulation, and the 1976 Standard has, to this time,
 remained in effect.  In discussing the progress of the state of the art,
 the Arbitrator highlighted a study, produced in April 1980, by the
 Asbestos Work Group, a joint effort of technicians from the Occupational
 Safety and Health Administration (OSHA) and the National Institute for
 Occupational Safety and Health (NIOSH).  The following is a portion of
 his quote of Item 4 of the study:
 
          . . . all levels of asbestos exposure studied to date have
       demonstrated asbestos-related disease, and a linear relationship
       appears to best describe the shape of the dose-response curve.
       These considerations led the committee to conclude that there is
       no level of exposure below which clinical effects do not occur . .
       . .  (T)he absence of a threshold is further indicated by the
       dramatic evidence of asbestos-related disease in members of
       asbestos-worker households and in persons living near
       asbestos-contaminated areas.  These household and community
       contacts involved low level and/or intermittent casual exposure to
       asbestos . . .
 
    The Arbitrator next pointed out that, pursuant to an Executive Order,
 the Department of the Navy adopted the prevailing OSHA standard in
 regard to permissible levels of airborne asbestos fibers.  He noted that
 in 1974, the Civil Service Commission found asbestos to be a hazardous
 substance and he then referenced the Federal Personnel Manual provision
 for the eight percent differential and the parties' collective
 bargaining agreement referring to the differential.  Finally he cited a
 study by Respondent of the ambient air in Building P-1 done shortly
 after the grievance had been filed.
 
    Several arguments were made to the Arbitrator and they were set forth
 in his decision.  Only those pertinent to this case are repeated.  The
 Union argued that "any concentration of airborne asbestos fibers is
 hazardous" and that employees are entitled to the differential "for
 exposure" to those fibers.  Management, on the other hand, argued that
 the Navy was obliged only to meet the OSHA standard and "Because the
 fiber count is less than that required by the OSHA standard, . . . it is
 not required to pay the eight percent rate differential . . . "
 
    The following findings of the Arbitrator are pertinent to the issues
 raised in this proceeding:
 
          Management is not correct when it claims that the
       concentrations of airborne asbestos fibers set out in 29 CFR
       1910.1001 (the OSHA standard) are to be used to determine whether
       the 8% environmental differential should be paid to employees
       working in Building P-1.  The OSHA standard, at whatever level, is
       designed to reduce the hazard.  The environmental differential is
       to provide compensation for exposure to the hazard.  Clearly, FPM
       Supplement 532-1, Appendix J does not establish a definite level,
       but states that the differential will be paid to employees,
       "working in an area where airborne concentrations of asbestos
       fibers may expose employees to potential illness or injury . . .
 
                                  * * * *
 
          The 1980 OSHA-NIOSH study . . . stated that any concentrations
       of airborne fibers in the workplace is inherently hazardous to
       those employees exposed to that work environment.
 
                                  * * * *
 
          (The Arbitrator then found specifically that the exposure
       standards set by Federal regulation and the intent of Appendix J
       to the FPM Supplement are not interdependent.)
 
                                  * * * *
 
          The issue, then, is whether there are concentrations of
       airborne asbestos fibers in the ambient air of the Power House . .
       .
 
          The Arbitrator's visit to the Power House was revealing but not
       conclusive.  Visual inspection could, in no manner, reveal whether
       the ambient air contained concentrations of asbestos fibers.
       Certainly, the broken insulation, the mysterious grey matter on
       the grating and the evidence of a major rip-out all indicate the
       possibility of concentrations of airborne asbestos fibers.
       However, it is clear that such a determination can only be made on
       the basis of air samples obtained through competent and accepted
       sampling techniques.
 
                        Discussion and Conclusions
 
    Counsel for both the Charging Party and for the General Counsel argue
 that the award of the Arbitrator is clear and unambiguous, that
 Respondent has failed to comply with the award in that it has failed and
 refused to pay employees the environmental differential, and that
 Respondent should be ordered to do so.
 
    On the other hand, Respondent argues that based on its interpretation
 of the award it has complied with it in good faith, and that the dispute
 in this matter arises out of differing but reasonably arguable
 interpretations of the terms of the award.  According to Respondent the
 award requires it to pay only "for exposure to 'concentrations' of
 asbestos in the workplace.  That is, to pay for exposure to some level
 or amount of asbestos which is concentrated-- i.e., elevated,
 densified-- above the general atmosphere which normally exists away from
 the workplace." Further, Respondent avers that compensation is to be
 paid only for exposure at or above the OSHA standard.
 
    While Respondent's argument is intriguing, I do not find it
 convincing.  First of all, in his decision, the Arbitrator specifically
 rejected Respondent's claim that the OSHA standard should be
 determinative.  By rejecting that argument, the Arbitrator implicitly
 accepted the Union's argument that exposure to any concentration of
 asbestos would be compensable.  He made specific reference in his
 findings to the 1980 OSHA-NIOSH study which found "any concentration" to
 be inherently hazardous.  He quoted a conclusion of the study that
 "there is no level of exposure below which clinical effects do not occur
 . . . ", and he found that the OSHA standard was designed to reduce the
 hazard and not to indicate a level below which the hazard should be
 found not to exist.  Moreover, the Arbitrator saw the issue to be
 "whether there are concentrations of airborne asbestos fibers in the
 ambient air of the Power House . . . ", and, refusing to rely on his
 layman's-eye-view of the situs, he concluded that a scientific study of
 the air would be the only method by which the indicated "possibility" of
 concentrations could be confirmed as an actuality.  Thus, taking the
 decision and award of the Arbitrator as a whole, there is no reasonable
 basis for concluding other than that Respondent would be obligated to
 pay the differential if the study demonstrated any concentrations of
 airborne asbestos fibers.
 
    The second prong of Respondent's argument that the award may be
 interpreted in more than one way rests on its definition of the word
 "concentrated" as meaning elevated or densified.  However, the proper
 interpretation of any word depends upon the context in which that word
 is used.  And given the context of use in this case, it is quite clear
 that Respondent has chosen a definition of the word which is not
 germane.  In the first place, the Arbitrator did not refer to
 "concentrated" asbestos;  his reference was to "concentrations" of
 asbestos.  Concentrated asbestos, like concentrated orange juice, would
 refer to a product which is strengthened by the removal of diluents or
 extraneous materials.  Concentrations of matter in a solution, mixture
 or dispersion, on the other hand, would refer to the relative content of
 a component that may be expressed in percentage by weight or by volume
 as, for example, in parts per million or in grams per liter.  /4/ The
 only reasonable interpretation of the Arbitrator's award is that the
 alternative of a test was designed to reveal only whether the ambient
 air contained any concentrations of asbestos fibers, regardless of how
 concentrated those asbestos fibers might be found to be.  To construe
 the award otherwise would fly in the face of the Arbitrator's finding
 that the OSHA standard should not be determinative, and it would render
 meaningless his background discussion of the cumulative and carcinogenic
 effects of asbestos exposure.
 
    On brief, Respondent's position was summarized as follows:
 
          Accordingly, when Respondent determined, based upon the test
       results, that not a single one of the P-1 employees was being
       exposed to any level of airborne asbestos greater than that found
       in the general outside atmosphere, it properly declined to pay
       differential for a hazardous exposure to asbestos.
 
    Based on the clear reading of the award and the evidence presented by
 Respondent's own study, that position cannot be sustained.  The only
 question presented by the Arbitrator was whether airborne concentrations
 of asbestos fibers were present in Building P-1;  he did not direct a
 study of general background air.  Moreover, the study did not portray
 the general outside atmosphere;  it only measured a background sample
 taken atop the Industrial Hygiene Lab at the Norfolk Shipyard.  That
 background sample took 2.17 hours and measured 260 liters of air.  A
 concentration /5/ of 0.13 fibers per cubic centimeter was found to be
 present.  What that sample shows is merely that such concentrations also
 exist at that site in particular.  Of interest though, is the data on
 page 6 of the Sampling Data Sheet which seems to indicate that at least
 one sample would indicate a higher exposure inside Building P-1.  In
 measuring the personal breathing zone of a Mr. Laughlin, a boilermaker
 changing valve wheels at all levels of the plant, technicians sampled an
 identical 260 liters of air over an identical 2.17 hours and found 0.16
 fibers per cubic centimeter.  However, in the remarks column, it states,
 "Short Sampling Period due to personnel assigned tasks outside of Power
 Plant." No such remarks appeared beside the sample taken for the same
 period of time at the Industrial Hygiene Lab to explain why that sample
 would be valid while the one taken from Mr. Laughlin would not be.  The
 record also does not explain away the inconsistencies between other
 samples showing higher concentrations such as the one on page 1,
 involving a boilermaker on top of Boiler #62, taken over 1.58 hours,
 measuring 190 liters, finding 0.34 fibers per cubic centimeter, and with
 the remark, "Not ideal sample-- sampling too short for 8-hour exposure
 evaluation";  and the one on page 3 involving a Boiler Plant Operator on
 top of Boiler #59 and that same Boiler #62, taken over 7.42 hours,
 measuring 890 liters, finding 0.23 fibers per cubic centimeter, and
 noting no remarks on the sample.  In short, Respondent's study shows
 that airborne concentrations of asbestos fibers are certainly present in
 Building P-1 and that, incidentally, those concentrations are, at least
 at times, greater than those found in the outside atmosphere at one
 particular location at the Shipyard.  /6/
 
    I conclude that the award of the Arbitrator is clear and unambiguous
 in its direction that if the study demonstrates that any concentrations
 of airborne fibers are present in the Power House, then affected Power
 House employees are to be paid the eight percent environmental
 differential retroactive to March 9, 1975.  Further, I conclude that the
 study did in fact demonstrate the existence of such concentrations;
 that, nevertheless, Respondent has failed and refused to pay that
 differential;  and that having so failed and refused to pay, Respondent
 has failed and refused to comply with an arbitrator's award and has
 thereby violated Sections 7116(a)(1), (5) and (8) of the Statute.  /7/
 Accordingly, I recommend that the Authority adopt the following:
 
                                   ORDER
 
    ORDERED, that the Navy Public Works Center, Norfolk, Virginia shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to comply with a final and binding
       arbitral award in Decision No. F-FMCS-8, dated August 11, 1980.
 
          (b) In any like or related manner, interfering with,
       restraining or coercing employees in the exercise of rights
       assured by the Federal Service Labor-Management Relations Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
          (a) Implement the August 11, 1980, award of the Arbitrator in
       Decision No. F-FMCS-8 by paying affected Power House employees the
       eight percent environmental differential retroactive to March 9,
       1975, and make whole the Union and affected employees for any
       other losses suffered as a result of Respondent's failure and
       refusal to implement that award.
 
          (b) Post at its facilities copies of the attached notice marked
       "Appendix" on forms to be furnished by the Federal Labor Relations
       Authority.  Upon receipt of such forms they shall be signed by an
       authorized representative and shall be posted and maintained in
       conspicuous places, including all bulletin boards and other places
       where notices are customarily posted.  Reasonable steps shall be
       taken to ensure that the notices are not altered, defaced, or
       covered by any other material.
 
          (c) Notify the Federal Labor Relations Authority in writing
       within 30 days from the date of this Order as to what steps have
       been taken to comply with the Order.
 
                                       ALAN W. HEIFETZ
                                       Administrative Law Judge
 
    Dated:  November 13, 1981
    Washington, D.C.
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 
                    WE HEREBY NOTIFY OUR EMPLOYEES THAT
 
    WE WILL NOT fail or refuse to comply with the final and binding
 arbitral award in Decision No. F-FMCS-8, dated August 11, 1980.
 
    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
 Statute.
 
    WE WILL implement the August 11, 1980, award of the Arbitrator in
 Decision No. F-FMCS-8 by paying affected Power House employees the eight
 percent environmental differential retroactive to March 9, 1975, and
 make whole the Union and affected employees for any other losses
 suffered as a result of our failure and refusal to implement that award.
                                       (Agency or Activity)
                                       By:  (Signature)
 
    Dated:  . . .
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting and must not be altered, defaced or covered by any other
 material.
 
    If employees have any question concerning this Notice, or compliance
 with any of its provisions, they may communicate directly with the
 Regional Director, Federal Labor Relations Authority, Region III, whose
 address is:  1111 18th Street, NW, Suite 700, Washington, DC 20036 and
 whose telephone number is (202) 653-8452.
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ See U.S. Army Health Clinic, Fort Ritchie, Maryland, 9 FLRA 935
 (1982).  In so concluding, the Authority finds it unnecessary to pass
 upon the Judge's further finding that the Respondent also failed to
 bargain in good faith in violation of section 7116(a)(1) and (5) of the
 Statute.
 
 
    /2/ While the Judge recommended that the Respondent also "make whole
 the Union and affected employ