28:1166(151)AR - AFGE, LOCAL 933 VS VA MEDICAL CENTER
[ v28 p1166 ]
The decision of the Authority follows:
28 FLRA NO. 151
ALLEN PARK VETERANS ADMINISTRATION MEDICAL CENTER ALLEN PARK, MICHIGAN Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 933 Union Case No. 0-AR-1365
I. Statement of the Case
This matter is before the Authority on exceptions to the award of Arbitrator William M. Ellmann filed by the Veterans Administration (Agency) under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition.
II. Background and Arbitrator's Award
The grievance in this case was filed in 1986 and concerned the Union's claim that 65 engineering service and warehouse employees were entitled to environmental differential pay (EDP) for exposure to airborne asbestos fibers. The Union sought payment of EDP to the employees for exposure to any amount of asbestos fiber since March 1975. The Activity denied the grievance on the ground that the amount of exposure to asbestos did not exceed the Occupational Safety and Health Administration (OSHA) standard of 0.1 fiber per cubic centimeter (0.1f/cc) adopted by the Agency as the standard for paying EDP. The Activity also contended that even if EDP were warranted, it could only be paid retroactively to 30 days prior to the filing of the 1986 grievance because the Union had filed another grievance on the same issue in 1984 but had failed to pursue resolution of that grievance.
The issue before the Arbitrator was whether the grievants were entitled to EDP for exposure to asbestos, under Federal Personnel Manual (FPM) Supplement 532-1, and if so, for what period of time payment was warranted. The Arbitrator noted the testimony of the Activity's representative that the Activity was attempting to complete asbestos cleanup and that it acknowledged that it had a duty to pay EDP if the levels of asbestos exceeded the Agency standard and if protective devices would not relieve the problem. However, the Arbitrator stated that he was persuaded by the Union's evidence that "there is no known level of exposure to asbestos that is risk free" and that "everyone subjected to this difficulty need not prove an actual damage." Award at 10. He also stated: "I also find as a matter of fact that any exposure subjects the employee to this difficulty and justifies payment of the pay differential." Id.
The Arbitrator rejected the Activity's argument that EDP could be paid retroactively only to 30 days prior to the date of the present grievance. He found that the Union delayed prosecution of the 1984 grievance based on the Activity's assurances that the asbestos problem would be resolved. As his award, the Arbitrator awarded EDP to the grievants for the period beginning 1978 to the present with the individual amounts to be determined by Activity management and the Union. He also charged the Activity to complete its asbestos cleanup program within 6 months of the award.
The Agency contends, among other things, that "the (A)rbitrator's determination that any level of exposure to asbestos actuates EDP is contrary to law." Agency's Exceptions at 8. The Agency contends that there are no facts to support the Arbitrator's findings on asbestos exposure, and that the OSHA standard is well documented, based on scientific data, and has attained the status of "legislative fact" which the Arbitrator must observe. In support of its exception the Agency cites O'Neall v. United States, 797 F.2d 1576 (Fed. Cir. 1986), in which the court held in effect that the Air Force could properly use a level of exposure of 2 asbestos fibers/cubic centimeter as a standard for making EDP payments under FPM Supplement 532-1, Appendix J. The Agency contends that Article 24 of the parties' collective bargaining agreement in this case specifically references OSHA regulations in connection with the duty to provide a workplace free of hazards and therefore any review of EDP issues must be conducted in light of those OSHA regulations. The Agency also argues that the Arbitrator abused his discretion by suggesting or ordering that the Agency comply with its asbestos management policies within 6 months or continue to pay EDP.
B. Analysis and Conclusions
It is well established and the Authority has consistently recognized that the specific work situations for which an environmental differential is payable under the categories of FPM Supplement 532-1, Appendix J are left to local determination, including arbitration. See, for example, American Federation of Government Employees, Local 2943 and Department of the Air Force, Loring Air Force Base, Maine, 10 FLRA 57 (1982). Category 16 of Appendix J provides that EDP is payable to persons working under the following conditions:
16. Asbestos. 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.
Category 16 thus contains two specific requirements for the payment of EDP. First, in order to warrant the payment of EDP, it must be found that persons are working in an area where airborne concentrations of asbestos fibers may expose employees to potential illness or injury. See Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 24 FLRA No. 85 (1986) (Authority denied agency's exception and stated that the arbitrator specifically found that all bargaining unit employees worked in areas where they were exposed to airborne asbestos in concentrations which may have subjected them to illness or injury). Second, there must be a finding that protective devices or safety measures have not practically eliminated the potential for such personal illness or injury. See American Federation of Government Employees, Local 2934 and Department of the Air Force, Loring Air Force Base, Maine, 10 FLRA 57 (1982) (denying exceptions to an award of 4 percent EDP for spraying herbicides where the arbitrator found that protective devices and safety measures had not practically eliminated the potential for personal injury).
The matter of environmental differential pay for employees exposed to airborne concentrations of asbestos fiber was discussed in detail in O'Neall v. United States, 797 F.2d 1576 (Fed. Cir. 1986). In that case, employees who work at an Air Force Base sought EDP because of exposure to asbestos dust in their work. The employees argued that under Category 16 of Appendix J, "the only conditions precedent which are permissible in connection with payment of EDP are (1) any exposure to asbestos dust, and (2) the fact that the risk of harm due to the exposure has not been practically eliminated." O'Neall, 797 F.2d at 1580 (emphasis in original). The Air Force argued that it had adopted a standard of 2 fibers per cubic centimeter, and that standard was the minimum threshold level for triggering EDP. The court stated that, considering the language of the Air Force EDP regulations which incorporated Category 16 of Appendix J, it "did not discern therein a clear entitlement to EDP whenever a worker is exposed to asbestos dust." O'Neall, 797 F.2d at 1581. The court found that the terms of the regulation compel "the legal conclusion that the regulation in itself is incomplete. A quantitative level of exposure reasonably related to 'potential illness' must be set as a condition precedent to entitlement to EDP." Id. The court went on to state:
That the regulation does not set out that level is not unexpected since any level which might be reasonable at one time may have to be changed because of later knowledge or improved safety devices. The regulation provides only general parameters of entitlement. This interpretation is in keeping with the enabling statute which allows "for proper differentials . . . (for) unusually severe working conditions or unusually severe hazards." 5 U.S.C. 5343(c)(4). Not all hazards give rise to entitlements. The words "unusually severe" appear also in the Federal Personnel Manual Supplement 532-1, Chapter S8-7(c) , . . . from which Appendix J depends. With that background, we cannot delete the "potential illness" requirement from the regulation when to do so would n