35:0042(7)AR - - Army, 6th Infantry Division (Light), Fort Richardson, AK and AFGE Local 1834, Fort Wainwright, AK - - 1990 FLRAdec AR - - v35 p42



[ v35 p42 ]
35:0042(7)AR
The decision of the Authority follows:


35 FLRA No 7

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE ARMY

6TH INFANTRY DIVISION (LIGHT)

FORT RICHARDSON, ALASKA

(Activity)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1834

FORT WAINWRIGHT, ALASKA

(Union)

0-AR-1607

DECISION

March 8, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator James M. Litton.

The Arbitrator determined that the Activity violated the parties' collective bargaining agreement when it terminated the payment of environmental differential pay (EDP) for certain work performed by the utilidor pipefitting crew at Fort Wainwright, Alaska. The Arbitrator ordered the Activity to reinstitute the payment of EDP for this work and to make the pipefitters whole by paying them EDP retroactive to April 11, 1987.

The Department of the Army (the Agency) filed exceptions on behalf of the Activity 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 to the exceptions.

We conclude that the Agency's exceptions have created an uncertainty as to whether the award is deficient because it is based upon clear factual errors. Accordingly, we must remand the Arbitrator's award to the parties to have them obtain a clarification of the award from the Arbitrator.

II. Background and Arbitrator's Award

On April 10, 1987, the Activity terminated the payment of EDP for asbestos removal work in utilidors (underground tunnels). The Union filed a grievance over the termination and the grievance was submitted to arbitration.

The Arbitrator stated that the issue before him was whether the Activity violated the collective bargaining agreement when it terminated the payment of EDP for asbestos removal work performed by the utilidor pipefitting/welding crew at Fort Wainwright, Alaska.

The Arbitrator stated the Union's position as follows:

EDP is appropriate for employees working in airborne asbestos concentrations that exceed .01 f/cc [fibers per cubic centimeters] because Appendix J of FPM [Federal Personnel Manual] Supplement 532-1 always authorizes payment of EDP for asbestos exposure when 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.

Arbitrator's Award at 5 (quoting the Union's grievance).

The Arbitrator noted that the Occupational Safety and Health Administration (OSHA) has established certain standards with respect to asbestos exposure:

During the period of time relevant to this grievance OSHA had established an "action level" of .01 f/cc. That is to say that if airborne asbestos reached .01 f/cc an employer was required to take certain training and medical action. During relevant times OSHA had also established a permissible exposure level (PEL) of .2 f/cc.

Id. at 6.

The Arbitrator noted the Activity's position that: (1) the OSHA PEL is a reasonable threshold for the payment of EDP, and (2) no tests in 1987 showed asbestos exposure above the OSHA PEL for any member of the utilidor crew. Although the Arbitrator acknowledged the Union's position that no level of airborne asbestos fibers is safe, the Arbitrator stated that the Union "suggests that an acceptable level at or below which EDP need not be paid is .01 f/cc--the OSHA action level." Id. at 11.

The Arbitrator concluded that the Activity violated the collective bargaining agreement and FPM Supplement 532-1, Appendix J when it terminated the payment of EDP. The Arbitrator determined that the Activity's tests showing no asbestos exposure above the OSHA PEL was not proof that the asbestos hazard has been overcome. The Arbitrator found that the Activity failed to establish that an amount of inhaled asbestos fibers above the OSHA PEL will not expose employees to potential illness or injury or that the use of protective devices had practically eliminated the potential for personal illness or injury. Accordingly, the Arbitrator ordered as follows:

The Employer shall reinstitute the payment of EDP for work performed by the utilidor pipefitting crew at Fort Wainwright, Alaska, and continue its payment until a level of .01 f/cc is attained through the use of protective clothing and inhalators or by other means.

The Employer shall make the utilidor pipefitting/welding crew whole by paying the members EDP retroactive to April 11, 1987.

Id. at 13.

III. Positions of the Parties

The Agency contends that the award is deficient because the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. The Agency maintains that the award is based on a gross mistake of fact pertaining to the OSHA "action level." Exceptions at 6. The Agency concedes that the OSHA action level of 0.1 f/cc would be a reasonable level at or above which the payment of EDP would be warranted. However, the Agency notes that under 29 C.F.R. part 1926, the OSHA "action level" is 0.1 f/cc--not 0.01 f/cc as stated by the Arbitrator. Consequently, the Agency submits that the Arbitrator's erroneous identification of 0.01 f/cc as the OSHA action level constitutes a gross mistake of fact, but for which a different result would have been reached.

The Agency also contends that the award is contrary to (1) 5 U.S.C. § 5343; (2) the Back Pay Act, 5 U.S.C. § 5596; and (3) FPM Supplement 532-1.

The Union contends that the Arbitrator's error with respect to the OSHA action level was typographical and was of a "de minimis nature." Opposition at 5. The Union also contends that the award is not contrary to law or regulation.

IV. Analysis and Conclusions

Section 7122(a)(2) of the Statute provides that the Authority may find an arbitration award deficient on "grounds similar to those applied by Federal courts in private sector labor-management relations." Federal courts will set aside a private sector arbitration award if the award is based on a nonfact. See, for example, Electronics Corporation of America v. International Union of Electrical, Radio and Machine Workers, 492 F.2d 1255, 1257 (1st Cir. 1974) ("[W]here the 'fact' underlying an arbitrator's decision is concededly a non-fact . . . the award cannot stand.") (Emphasis in original.). See also United Electrical, Radio and Machine Workers v. Litton Microwave Cooking Products, 704 F.2d 393, 396-97 (8th Cir. 1983) ("[I]f the arbitrator assumes the existence of a fact that is central to the award, and an examination of the record reveals no support whatever for the arbitrator's assumption, an award cannot stand."). In Litton, the court set aside the arbitration award because the court concluded that the arbitrator's erroneous assumption was "so central to the arbitrator's decision that but for the erroneous assumption a different result would have been reached." Id.

An arbitration award is based on a nonfact when the central fact underlying the award is clearly erroneous, but for which a different result would have been reached. For example, U.S. Army Missile Command, Redstone Arsenal, Alabama and Local 1858, American Federation of Government Employees, AFL-CIO, 18 FLRA 374 (1985). For the following reasons, we conclude that the Arbitrator's award must be remanded to the parties for resubmission to the Arbitrator. Although the Arbitrator made a clearly erroneous finding on a fact underlying the award, we are unable to determine whether that clearly erroneous finding was "central" to the award and whether the Arbitrator would have reached a different result "but for" that finding.

The Arbitrator's repeated statements that the OSHA action level is 0.01 f/cc are clearly erroneous. The OSHA action level is 0.1 f/cc. 29 C.F.R. § 1926.58(b). There is a tenfold difference between the actual OSHA action level and the Arbitrator's erroneous statement of the action level. We reject the Union's assertion that the difference between the actual OSHA action level and the Arbitrator's erroneous statement of the action level is "de minimis." Opposition at 5.

The Union "recognize[d] .01 f/cc as a 'reasonable' threshold level for EDP." Arbitrator's Award at 13 n.5. The Arbitrator stated that the Union's "acceptable level" of exposure to asbestos--the level at or below which the Activity need not pay EDP--was "the OSHA action level." Arbitrator's Award at 11. The Arbitrator concluded that the Activity must reinstitute and continue the payment of EDP "until a level of .01 f/cc is attained through the use of protective clothing and inhalators or by other means." Arbitrator's Award at 13.

The Arbitrator provides no reasons for his decision to tie the payment of EDP to a level of exposure of 0.01 f/cc. The award indicates, however, that the Arbitrator believed that a level of exposure of 0.01 f/cc corresponded to both (1) the Union's "acceptable" level of exposure and (2) the OSHA action level.

The Arbitrator provided no reasons for his decision to adopt an exposure level of 0.01 f/cc. It is unclear, therefore, whether the Arbitrator adopted that level of exposure because of his erroneous finding that an exposure level of 0.01 f/cc corresponded to the OSHA action level. Because the Arbitrator did not provide any reasons for his adoption of an exposure level of 0.01 f/cc, we are unable to determine from the award whether (1) the OSHA action level is a "central" fact underlying the award, or (2) the Arbitrator would have reached a different result "but for" his erroneous statement of the OSHA action level. Accordingly, we are unable to determine whether the Arbitrator's award is deficient because it is based on a nonfact.

In order to provide a record on which to determine whether the award is deficient, the Arbitrator's award must be remanded to the parties to have them obtain a clarification of the award from the Arbitrator. See Veterans Administration and American Federation of Government Employees, Local 3692, 19 FLRA 164 (1985); Norfolk Naval Shipyard, Portsmouth, Virginia and Tidewater Virginia Federal Employees Metal Trades Council, 9 FLRA 538 (1982).

V. Decision

Pursuant to section 2425.4 of the Authority's Regulations, the Arbitrator's award is remanded to the parties. The parties are directed to resubmit the award to the Arbitrator, either jointly or separately, to obtain a clarification of the award. The Arbitrator should clarify whether the fact that the OSHA action level is 0.1 f/cc affects his determinations that: (1) the Activity violated the collective bargaining agreement when it terminated the payment of EDP for work performed by the utilidor pipefitting crew at Fort Wainwright, Alaska; and (2) the Activity should reinsti