37:0559(41)AR - - Justice, Bureau of Prisons, Federal Correctional Institution, El Reno, OK and AFGE Local 171 - - 1990 FLRAdec AR - - v37 p559
[ v37 p559 ]
The decision of the Authority follows:
37 FLRA No. 41
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF JUSTICE
BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
EL RENO, OKLAHOMA
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
September 26, 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 Charles J. Morris. The Arbitrator found that the grievants were entitled to Enviromental Differential Pay (EDP) under Federal Personnel Manual (FPM) Supplement 532-1, Subchapter S8-7, Appendix J. The Arbitrator ordered that the Agency cease and desist from failing to comply with applicable Occupational Safety and Health Administration (OSHA) regulations concerning the handling of asbestos fibers.
The Agency filed exceptions to the award 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 Agency's exceptions.
For the following reasons, we remand the award to the parties for the purpose of requesting that the Arbitrator clarify his award to address fully whether the requirements of the Federal Personnel Manual, Supplement 532-1, Appendix J, have been met, and if the requirements were met, to specify the time period for which the grievants are entitled to receive EDP.
II. Arbitrator's Award
The issues submitted to arbitration were:
whether the Agency provided proper training for the employees who were required to perform asbestos abatement work, whether it improperly denied such employees an 8% "enviromental differential," [and] whether it has unnecessarily exposed employees to asbestos hazards[.]
Award at 2-3. The Union sought current and retroactive EDP, and an order requiring the Agency to comply with current regulations concerning the handling of asbestos. Id.
The Arbitrator first noted that the evidence indicated that from 1984 through 1986, "some employees . . . were exposed to asbestos, although it is unclear from the record as to the extent of the exposure or how many employees might have been exposed." Id. at 7. The Arbitrator then found that the Agency had not complied with the OSHA regulations until August of 1988. Id. at 8.
The Arbitrator relied on two memoranda, addressing problems regarding the asbestos abatement program, to support his finding that the Agency had not complied with OSHA regulations. Id. at 8-10. In addition, the Arbitrator noted that three of the grievants testified about their participation in asbestos removal "under conditions which were in clear violation of OSHA regulations." Id. at 11. The Arbitrator found that "during the spring of 1988, Grievants were assigned to asbestos abatement jobs without adequate protection or training." Id. at 12. The Arbitrator noted that "[t]he serious asbestos problems identified in the two memoranda and in the testimony of the Union's witnesses were not promptly corrected[.]" Id. at 13.
The Arbitrator noted that there were "no accurate records to indicate the extent of concentration of asbestos particles in the air associated with any of the abatement jobs to which the grievants were assigned prior to August, 1988." Id. According to the Arbitrator, there were no accurate records because prior to August 1988, the grievants had not received training necessary to properly calibrate the air sampling pump. Id. The Arbitrator concluded that the evidence showed that small as well as large scale jobs "were not performed in accordance with OSHA regulations." Id. at 15. The Arbitrator also noted that "[t]he hazard could have been eliminated by proper use of protective measures and safety devices, but it was not eliminated until August, 1988, when . . . the agency provided proper calibration of the air sampling pump." Id. at 16. The Arbitrator concluded that "the Agency was in violation of the collective bargaining agreement and the applicable regulations prior to that time." Id.
The Arbitrator sustained the grievance for "the period in which the Grievants were engaged in asbestos abatement prior to the introduction of proper calibration of air monitoring equipment in August, 1988." Id. The Arbitrator denied the grievance for the period thereafter. The Arbitrator ordered the Agency to "[c]ease and desist from failing to comply with all applicable regulations governing the handling of and exposure to asbestos fibers, and affirmatively comply with such regulations in the future." Id. at 16-17. The Arbitrator also ordered that the grievants be made whole for their losses resulting from the failure to pay them EDP "for all time spent in asbestos abatement prior to . . . August, 1988[.]" Id. at 17.
III. Agency's Exceptions
The Agency asserts that the award is inconsistent with FPM Supplement 532-1, Subchapter S8-7, Appendix J, which implements 5 U.S.C. § 5343(c)(4); 29 C.F.R. § 1926.58; the Back Pay Act, 5 U.S.C. § 5596; and 5 U.S.C. § 7116(a)(1) and (8) and (b)(1) and (8). Additionally, the Agency argues that if the Union claims EDP for the period prior to January 1, 1988, the Arbitrator exceeded his authority in deciding a matter which was not before him.
The Agency first notes that the Arbitrator correctly found that the Agency had adopted the standards published by OSHA in 29 C.F.R. § 1926.58. These standards establish the permissible exposure limit of airborne concentration of asbestos as 0.2 fiber per cubic centimeter (0.2 f/cc.) and require that respirators and protective clothing be used when exposure exceeds that level. Exceptions at 4.
According to the Agency, the grievants were not exposed to asbestos fibers at a level exceeding the permissible exposure limit. The Agency notes that when air samples were taken in the work areas concerned, no sample ever produced a reading in excess of 0.2 f/cc. Id. The Agency cites O'Neall v. United States, 797 F.2d 1576, 1581 (Fed. Cir. 1986), where the court held that "[a] quantitative level of exposure reasonably related to potential illness must be set as a condition precedent to entitlement to EDP." Id. at 13 (emphasis omitted).
The Agency also asserts that the Arbitrator failed to make the findings, required by Appendix J, necessary to support an award of EDP. The Agency argues that the Arbitrator erred because he "assume[d] that the grievants had been exposed to more than 0.2 f/cc." based on his conclusions that the Agency failed to follow OSHA regulations, and because it was not possible to verify the accuracy of the air samples taken. Id. at 20. The Agency also argues that the Arbitrator erroneously concluded that the use of protective equipment had not eliminated the potential for personal illness or injury.
In addition, the Agency argues that the award is contrary to the Back Pay Act, 5 U.S.C. § 5596. According to the Agency, the Arbitrator's finding that the Agency failed to comply with OSHA regulations does not constitute the finding required under the Back Pay Act "that the grievants were, in fact, exposed to airborne asbestos at levels exceeding 0.2 f/cc. which would have entitled them to receive EDP. . . . " Id. at 24-25.
Finally, the Agency argues that (1) because the Arbitrator retained jurisdiction, the award is inconsistent with 5 U.S.C § 7116(a)(1) and (8), and 7116(b)(1) and (8), and/or the "functus officio" rule; and (2) if the Union claims that the award encompasses backpay for work projects carried out before January 1, 1988, the Arbitrator exceeded his authority in deciding a question which was not submitted to him, and formulating a remedy not requested by the grievants. Id. at 7, 30.
IV. Union's Opposition
The Union asserts that the Arbitrator "correctly considered the issues of this case and deduced the proper conclusions from the evidence, based on applicable rules, regulations, and laws." Opposition at 17. According to the Union, the Arbitrator correctly found that the Agency violated OSHA regulations, exposed employees to airborne concentration of asbestos at sufficient levels to create a potential for illness, and that the Agency should be required to pay the affected employees the authorized EDP.
V. Analysis and Conclusions
Category 16 of Appendix J conditions the payment of EDP on findings that: (1) employees are working in areas where airborne concentrations of asbestos fibers may expose them to potential illness or injury; and (2) protective devices or safety measures have not practically eliminated the potential for such personal illness or injury. See Allen Park Veterans Administration Medical Center, Allen Park, Michigan and America Federation of Government Employees, Local 933, 28 FLRA 1166, 1168 (1987) (Allen Park, VAMC). 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. Id. at 1170.
With respect to the latter point, the Agency has adopted, by regulation, an exposure level of 0.2 f/cc. as its "permissible exposure limit" and a level of 0.1 f/cc. as its "action level." Exceptions at 3-4. Although the exposure levels discussed in the Agency's regulations require certain actions, including the designation of "regulated areas," and the requirement that employees wear respirators and protective clothing, nowhere in the regulations is exposure at either level linked to the payment of EDP. Id. There is, therefore, no basis on which to conclude that, pursuant to the Agency's regulations, EDP may not be paid to employees unless their exposure to airborne concentrations of asbestos fibers exceeds 0.2 f/cc.
Moreover, the Government-wide regulation applicable here, Appendix J, conditions the payment of EDP on a finding of "potential illness or injury." Nothing in the record of this case supports a conclusion that there is a potential for illness or injury only if the level of exposure exceeds 0.2 f/cc. Accordingly, as parties are free to determine through negotiations and arbitration the situations in which EDP is payable under Appendix J, we reject the Agency's assertions that in order to award EDP, the Arbitrator was required by law to find that the grievants' exposure to airborne concentrations of asbestos fibers exceeded 0.2 f/cc. See Allen Park VAMC. See also Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1100 (1990) (Allen Park VAMC II) (arbitrator's finding "as a matter of law and fact that there is no quantitative threshold level below which exposure will not have the potential of illness or injury" satisfied requirement of Appendix J).
In the case before us, the Arbitrator found that the Agency had not complied with the OSHA regulations. Award at 15. The Arbitrator did not find, however, that the grievants were exposed to levels of airborne concentrations of asbestos which were sufficient to cause potential illness or injury. In fact, the Arbitrator acknowledged that from 1984 to 1986, it was "unclear from the record as to the extent of the exposure or how many employees might have been exposed." Id. at 7. The Arbitrator made no findings concerning the extent of employee exposure after 1986.
We note, in this regard, that the Arbitrator found that "[t]he hazard could have been eliminated by proper use of protective measures and safety devices[.]" Id. at 16. As the Arbitrator referenced the requirement of Appendix J, the Arbitrator may have viewed "the hazard" as exposure at a level creating a potential for illness or injury. The Arbitrator did not make an express finding in this regard, however. We note also the Union's assertion that "no 'threshold limit' exists for asbestos, below which there is no 'potential for ill