31:1250(112)AR - The Washington Plate Printers Union, Local No. 2, I.P.D.E.U. and Treasury, Bureau of Engraving and Printing -- 1988 FLRAdec AR
[ v31 p1250 ]
The decision of the Authority follows:
31 FLRA NO. 112 THE WASHINGTON PLATE PRINTERS UNION LOCAL NO. 2, I.P.D.E.U. Union and U.S. DEPARTMENT OF THE TREASURY BUREAU OF ENGRAVING AND PRINTING Agency Case No. 0-AR-1442 DECISION I. Statement of the Case This matter is before the Authority on exceptions to the award of Arbitrator Millard Cass filed by the 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. Article VIII, Section 3 of the parties' agreement provides: "Reasonable time not to exceed 10 minutes will be allowed employees for cleanup before lunch." The Arbitrator ruled that this section provided employees with a 10-minute period for personal cleanup before lunch and that management could not assign other duties during the 10-minute period. We find that Article VIII, Section 3 constitutes an appropriate arrangement within the meaning of section 7106(b) (3) of the Statute and, as such, is enforceable through grievance arbitration. Therefore, we conclude that the Agency's exceptions fail to provide a basis for finding the award deficient. II. Background The employees involved in this case are plate printers. Plate printers are assigned to a variety of press equipment, including different types of chemical and waterwipe intaglio presses and a gravure press. While operating the presses, employees routinely handle toxic substances such as intaglio ink (containing lead), varsol, caustic soda, and solvents. The Agency shuts down all press equipment during the lunch period on each shift. Press cleanup is performed once on each shift immediately before lunch. During press cleanup, the employees come into direct contact with toxic substances, which get on their clothes, faces, hair, and arms, as well as in or near their eyes. Following press cleanup, plate printers are required by management to perform personal cleanup before going to lunch. In August 1986, the Agency issued a memorandum regarding personal cleanup. Before that time, printing presses were shut down once each shift for 1 hour and 35 minutes. That time was used for a paid 30-minute lunch period which was combined with paid 15-minute breaks immediately before and after lunch to allow employees a 1-hour lunch break. The remaining 35 minutes were used for a paid 20-minute press cleanup before the pre-lunch break and a paid 15-minute make-ready period after the post-lunch break. Following issuance of the memorandum, the Agency prohibited the two 15-minute breaks from being combined with the lunch period and required that the breaks be taken by employees individually while the presses remain in operation. As a result, the presses were shut down only during the 20-minute press cleanup period, the 30-minute lunch period, and the 15-minute make-ready period after lunch. No specific time was set aside for employees' personal cleanup before lunch. The Union filed a grievance on behalf of three employees who were charged 10 minutes absence without leave when they added 10 minutes to their lunch period for the purpose of personal cleanup. The grievance was later broadened to include all affected employees. When the parties were unable to resolve the grievance, they submitted the dispute to arbitration. The Union stated the issue to be: 1. Whether the Bureau is required by Article VI, Section 1 and Article VIII, Section 3 of the collective bargaining agreement to afford to plate printers separate periods of work time of up to 10 minutes for personal wash-up and 15/20 minutes (depending on the press equipment) for press clean-up prior to the lunch period shutdown. 2. Whether the continued enforcement of these contractual provisions is precluded by any management rights reserved by Article IV of the agreement and/or 5 U.S.C. 7106(a). Award at 2. The Agency stated the issue to be: (W)hether the contract compels the Bureau to provide plate printers a cleanup period during which management can not assign other duties to them. Award at 3. The Union contended that employees were entitled to up to 10 minutes of time to perform personal cleanup following press cleanup and prior to the lunch break under Article VIII, Section 3 of the parties' agreement. That section provides: "Reasonable time not to exceed 10 minutes will be allowed employees for cleanup before lunch." The Union maintained that provisions identical to Article VIII, Section 3 were contained in both the 1975 and the 1980 agreements. The Union claimed that allowing the 10-minute cleanup period was not contrary to management's right to assign work under section 7106(a)(2)(A) of the Statute. Rather, it argued that the Fair Labor Standards Act, 29 U.S.C. 201 et seq., and the Occupational Safety and Health Act (OSHA), 29 U.S.C. 651 et seq., require the granting of paid time for personal cleanup for employees such as plate printers who are exposed to toxic and harmful substances. The Union also contended that even if the 10-minute cleanup period interferes with the right to assign work, the provision is an appropriate arrangement for affected employees because it does not excessively interfere with the exercise of management's rights. The Agency acknowledged the need for personal cleanup and agreed that a "reasonable time" was permitted under the agreement. However, the Agency denied that the agreement provided a 10-minute period for cleanup before the lunch period during which time no other duties could be assigned. The Agency argued that employees were able to perform cleanup without having duty-free time set aside for that purpose. III. The Arbitrator's Award The Arbitrator noted that because of the requirement to stop and wash the printing presses for 20 minutes prior to the 30-minute lunch period, the only time available for employees to perform personal cleanup would be after the press cleanup time and before the lunch period. Award at 42. He ruled that the 10-minute personal cleanup time was &guaranteed" to employees in both the 1975 and the 1980 agreements. Award at 42. He denied the Agency's contentions that the Union's interpretation would violate management's right to assign work under section 7106(a)(2)(B) because he found that there was no clear opportunity for employees to perform cleanup at any other time. He noted that: (1) cleanup before eating was &absolutely required for minimal protection of the health of these employees"; (2) Federal health regulations and the Agency's own rules required cleanup; and (3) "(t)here was even an admission (by the Agency) that failure to take that precaution could result in discipline if a disability resulted." Award at 43. The Arbitrator held that because there was "a clear and direct relationship between a careful wash-up and the health and safety of the employees," Article VIII, Section 3 did not conflict with management's rights under section 7106(a)(2)(B). Award at 43. The Arbitrator held that National Association of Government Employees, SEIU, AFL - CIO and National Guard Bureau, Adjutant General, 26 FLRA 515 (1987), cited by the Agency, was distinguishable from the facts in this case. In National Guard Bureau, the Authority held that Proposal 2, which allowed time for personal cleanup immediately preceding the lunch period and end of the workday, was nonnegotiable because it interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Arbitrator held that National Guard Bureau did not apply because in that case, there was latitude for the time in which the cleanup could have taken place. The Arbitrator found that in the instant case, the mandatory cleanup "must be squeezed in between the press clean-up shutdown and the lunch period shutdown." Award at 44 (emphasis in original). In addition, the Arbitrator held that Article VIII, Section 3 was a permissible subject of bargaining under section 7106(b)(1) because the cleanup period was an integral part of the methods and means of performing the Agency's work. Award at 44. IV. Exceptions The Agency contends that the award is contrary to section 7106(a)(2)(B) of the Statute because it requires management to set aside a specific time during the workday for employee cleanup and prevents the assignment of any other duties during that time. The Agency contends that the Arbitrator erred when he declined to follow National Guard Bureau. The Agency agrees that employees should be given time for personal cleanup, but argues that management retains the right to assign other duties while employees are cleaning up. Exceptions at 14. The Agency maintains that "(e)ven if it were possible to find that management . . . had entered into an agreement with the Union spelling out the time to be devoted exclusively to personal cleanup, as the Arbitrator has determined, the agreement would be unenforceable as contrary to law." Exceptions at 21. V. Opposition The Union alleges that the Agency's arguments were rejected by the Arbitrator and constitute an attempt to relitigate the matter before the Authority. The Union contends that the Arbitrator correctly ruled that personal cleanup was an integral part of the methods and means of performing work over which the Agency had elected to negotiate under section 7106(b)(1) of the Statute. The Union also contends that the Agency's denial of personal cleanup time was inconsistent with obligations imposed by relevant health and safety laws and regulations. The Union points out that the exercise of management's rights under section 7106(a)(2) must be "in accordance with applicable laws." Opposition at 13. Therefore, the Union contends that the Arbitrator correctly found that OSHA and Agency regulations mandate the provision of cleanup time before lunch. Opposition at 15. The Union denies that the Arbitrator's award violates management's right to assign work. The Union contends that no other duties can meaningfully be assigned during the interval between the required press cleanup and the lunch period. Opposition at 16. The Union argues that National Guard Bureau, 26 FLRA 515, is not dispositive because in that case, the Authority found that the Union failed to identify any specific OSHA requirement to support its claims for personal cleanup time. In the instant case, the Union notes that the Arbitrator found that the cleanup time was clearly required by the circumstances and by OSHA requirements. Opposition at 21-23. VI. Discussion We find that the award is not deficient. The award enforces a provision of the parties' agreement which mitigates the adverse effect on employees of the unclean and potentially unhealthful conditions inherent in their work as printers. We conclude that Article VIII, Section 3 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Therefore, the Agency's exceptions must be denied. The Agency correctly states that under the Statute and Authority precedent, provisions which prescribe time periods for the performance of specific duties interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA 700 (1987) (Proposal 2), petition for review filed sub nom. Overseas Education Association, Inc. v. FLRA, No. 87-1468 (D.C. Cir. Sept. 8, 1987). In National Guard Bureau, the Authority found that a proposal which set aside a time period for personal cleanup interfered with management's right to assign work because it precluded the agency from assigning other duties to employees during that time period. 26 FLRA at 516. In the case now before us, Article VIII, Section 3 requires the Agency to set aside a time period of a specified length for the sole purpose of employee cleanup. Therefore, consistent with the decision in National Guard Bureau, we find, contrary to the Arbitrator, that Article VIII, Section 3 interferes with the Agency's right to assign work. This finding does not, however, end our inquiry. The Union claims that Article VIII, Section 3 constitutes an appropriate arrangement within the meaning of section 7106(b)(3). Under section 7106(b)(3), a provision which interferes with a management right may nevertheless be negotiable and enforceable by an arbitrator as an appropriate arrangement if it does not excessively interfere with that right. We find that Article VIII, Section 3 is an appropriate arrangement within the meaning of section 7106(b)(3) and, thus, was properly enforced by the Arbitrator. See National Federation of Federal Employees, Local 284 and Department of the Navy, Naval Air Technical raining Center, Lakehurst, New Jersey, 29 FLRA 958 (1987) (Provision 1) (an arbitrator's award which simply enforces a properly negotiated appropriate arrangement under section 7106(b)(3) is not contrary to section 7106(a) of the Statute). Under the test established in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986), in order to determine whether a provision constitutes a negotiable appropriate arrangement, we must first determine whether it is intended to be an "arrangement" for employees who may be adversely affected by the exercise of management's rights. If we find that the provision is intended to be an "arrangement," we will then determine whether it is an "appropriate" arrangement, that is, whether it excessively interferes with the exercise of management's rights. The Arbitrator found, and the Agency agrees, that the nature of the printers' work involves constant exposure to toxic substances, particularly during the pre-lunch press shutdown. Award at 21-23. The exposure to toxic substances is a direct result of the Agency's assignment of printing duties to the employees. Article VIII, Section 3 mitigates the adverse effect on employees of exposure to those substances by providing them an opportunity to remove the substances from their hands and faces before eating. We find, therefore, that Article VIII, Section 3 is an "arrangement" within the meaning of section 7106(b)(3) of the Statute for employees adversely affected by the assignment of work. In order to determine whether Article VIII, Section 3 is an "appropriate" arrangement, we must determine whether it excessively interferes with management's right to assign work. In making that determination, we balance the benefit afforded employees by the provision against its effects on the exercise of the right. Kansas Army National Guard, 24 FLRA at 31-34. The burden imposed on management by Article VIII, Section 3 is the loss of up to 10 minutes of worktime prior to the employees' lunch period. The employees, on the other hand, derive a health and safety benefit from being provided a period in which to clean up. The record indicates that employees are routinely exposed to toxic and hazardous substances. Exposure is particularly intense during press cleanup. Award at 6; Opposition at 4-5. As the Arbitrator found, personal cleanup is "absolutely required for minimal protection of the health of these employees" because there is "a clear and direct relationship between a careful wash-up" and prevention of the adverse consequences of contact with toxic substances. Award at 43. The Agency agrees that personal cleanup after contact with toxic substances is "necessary for printers' health and safety, and is thus an activity which is a legitimate part of the workday." Exceptions at 14; Award at 43. The Arbitrator found that the Agency not only requires printers to wash up before lunch but could discipline them if they fail to perform required personal cleanup. Award at 6, 43; Opposition at 14. The Arbitrator also found that Article VIII, Section 3 was consistent with OSHA regulations regarding employee cleanup after contact with toxic and hazardous materials. Award at 43. In this connection, the record indicates that OSHA-mandated material safety data sheets which are posted in the printers' work area require thorough washing following skin contact with such materials. Id. The findings of the Arbitrator and other evidence in the record establish that it is essential to the health and safety of the employees in this case that they be provided with a period of time in which to clean up prior to their lunch period in order that they may remove any of the toxic substances with which they have come in contact during their work. In our view, the record in this case supports the conclusion that the benefit to employees of the cleanup period provided by Article VIII, Section 3 outweighs the loss of worktime which would result. We find, therefore, that Article VIII, Section 3 of the parties' agreement does not excessively interfere with management's right to assign work and is an enforceable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Accordingly, we conclude that the Arbitrator properly enforced Article VIII, Section 3 of the parties' agreement and that there is no basis for finding the award deficient on the grounds that it is inconsistent with section 7106(a)(2)(B) of the Statute. */ VII. Decision The Agency's exceptions are denied. ssued, Washington, D.C., April 27, 1988. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote */ In light of our conclusion, it is unnecessary to consider the Arbitrator's finding that Article VIII, Section 3 constituted one of the methods or means by which the Agency performed its work or the Union's contentions that the provision incorporates existing legal restrictions on the assignment of work.