40:0614(56)AR - - NTEU Chapter 51 and IRS, Wichita District Office - - 1991 FLRAdec AR - - v40 p614



[ v40 p614 ]
40:0614(56)AR
The decision of the Authority follows:


40 FLRA No. 56

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL TREASURY EMPLOYEES UNION

NTEU CHAPTER 51

(Union)

and

INTERNAL REVENUE SERVICE

WICHITA DISTRICT OFFICE

(Agency)

0-AR-1645

DECISION

May 1, 1991

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 Merton C. Bernstein 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 to the Agency's exceptions.

The grievance in this case alleged that the Agency violated the parties' collective bargaining agreement by failing to maintain a safe and healthful work environment. The Arbitrator sustained the grievance and directed the Agency to: (1) pay hazard duty pay if regulations permit such payment or, if not, petition for an amendment to the applicable regulations; (2) restore annual or sick leave to its employees; (3) reimburse unit employees for out-of-pocket medical care costs; and (4) pay for unit employees' medical examinations.

The Agency excepts to the award on the basis that it: (1) is contrary to law to the extent that it awards 25 percent hazard pay to the grievants; (2) cannot be implemented because it fails to resolve the issue of entitlement to hazard pay; and (3) is contrary to law in ordering restoration of leave, reimbursement for medical expenses, and payment for physical examinations.

For the reasons which follow, we conclude that the portions of the award directing the payment of hazard pay, reimbursement for medical costs and expenses, and payment for medical examinations are deficient and must be set aside.

The portions of the award directing the Agency to petition for an amendment of hazard pay regulations and to restore leave are not deficient. Accordingly, exceptions relating to those portions of the award will be denied.

With regard to the portions of the award pertaining to the restoration of leave, payment of medical costs and the provision of medical exams, the Authority requested an advisory opinion from the U.S. Department of Labor (DOL), which is charged with administering the Federal Employees Compensation Act (FECA), 5 U.S.C. § 8101 et seq. The DOL Opinion, as well as the parties' responses thereto, are set forth in our discussion of the pertinent Agency exception.

II. Background and Arbitrator's Award

The group grievance arose after the Agency moved its employees into leased premises, which were also occupied by a company manufacturing urethane. The move occurred in mid-November 1986. The Arbitrator found that shortly after the move, management and employees became aware that the work site had ventilation problems which management "tried to ameliorate by locating smokers in one area." Id. at 3.(1)

The Arbitrator found that the ventilation problems persisted, and by February 1987, the fumes produced by the operations of the manufacturing company caused Agency employees to have various physical symptoms including headaches, dizziness, and queasiness, which caused some employees to take sick leave. The Agency requested that the landlord either move the manufacturing operations or make alterations to the building to isolate the fumes in the manufacturing portion of the building. No actions were taken by the landlord. From late February to early April, the problem did not recur. By April 27, 1987, however, the fumes again entered the Agency's work space. An industrial hygiene survey subsequently conducted by a General Services Administration contractor revealed that methyl ethyl ketone (MEK), a solvent, was being used on the manufacturer's premises to clean the floor, and that MEK fumes had entered the Agency's work space through a substandard fire wall and other openings. The industrial hygienist found that the fumes and vapors were causing "a potential health and fire safety hazard to the individuals subjected to the exposure within the [Agency's] office[,]" but that the exposure was short term and, "once removed from the premises ill affects should subside." Id. at 4-5.

The Arbitrator then noted the Agency's conclusion that the level of MEK "did not meet the accepted limits for either explosive or hazardous exposure[,]" and that the level fell well below the limits determined to be safe by the Occuptational Safety and Health Administration (OSHA) for workplace exposure. Id. at 5. However, because employees continued to experience health problems, and in view of the lack of cooperation by the landlord, the Agency vacated its space on June 1, 1987.

Turning to the merits of the grievance, the Arbitrator found that by early February 1987, the Agency was aware of a substandard wall between the manufacturer's operations and the Agency's space. The Arbitrator also found that the Agency's reliance on the results of the industrial hygienist's survey to establish that the levels of MEK were below accepted levels "do not establish that on other earlier occasions 'accepted limits' for MEK were not exceeded." Id.

The Arbitrator then reviewed provisions of the parties' collective bargaining agreement and found that the Agency violated sections 1A, 1C and 2 of Article 27.(2) More specifically, the Arbitrator found that the Agency violated section 1A of Article 27 by failing to provide and maintain a safe and healthful working environment for its employees. The Arbitrator rejected the Agency's contention that it had fulfilled its obligations under the agreement by attempting to have the manufacturer removed from the premises. The Arbitrator found, instead, that the agreement required the Agency to provide a safe workplace and to maintain safe and healthful working conditions, not merely to attempt to do so.

With regard to section 1C, which obligates the Agency "to 'institute prompt and appropriate action to correct any unsafe working condition . . . reported[,]'" the Arbitrator found that the Agency failed to remove its employees from premises that it knew would expose them to health hazards which "were serious enough for management to make plans to terminate the lease." Id. at 8, 9. The Arbitrator found that the Agency should not have waited to resolve its lease problems prior to honoring its contractual safety obligations and that the Agency delayed moving until "serious injury occurred." Id. at 10.

Finally, the Arbitrator concluded that the Agency breached "its contractual duty to advise the Union and employees" of the hazardous working conditions, as required by section 2 of Article 27. Id.

Having found that the Agency violated the parties' agreement, the Arbitrator then considered the following remedy requested by the Union: (1) payment of hazard pay for the period employees were co-located with the urethane manufacturer; (2) restoration of leave taken by employees during that period; (3) compensation for out-of-pocket medical care costs incurred by the employees; and (4) payment for physicals to determine whether employees incurred injuries.

With regard to the Union's first request, the Arbitrator examined law and regulation governing hazard duty pay, set forth at 5 U.S.C. § 5545(d), 5 C.F.R. Part 550, Subpart I, and Appendix A to Subpart I. Appendix A contains a schedule of pay differentials that are authorized for irregular or intermittent hazardous duty. The Arbitrator found that the regulation "focuses on the potentiality of health hazards . . ." and authorizes 25 percent hazard duty pay for exposure to toxic chemical hazards. Id. at 14. The Arbitrator determined that the employees "worked in proximity to danger of fumes from toxic chemicals to which they were subjected intermittently[,]" that the danger existed throughout the period the employees were co-located with the urethane manufacturer and that, therefore, hazard pay should be given for the entire period. Id. Consequently, he directed the Agency to provide hazard pay for the period during which the employees worked at the unhealthy premises or, "if current regulations do not authorize such payments[,]" to petition the Office of Personnel Management (OPM) to amend Appendix A to allow for such payment. Id.

With regard to the other relief requested by the Union, the Arbitrator found that inasmuch as the Agency breached its contractual obligations to provide and maintain a safe and healthful workplace, the Agency was obligated to take the following actions:

Restore annual or sick leave taken for periods of illness associated with fumes during the period January - May 1987, including time off taken for the purpose of medical examinations during that period or subsequently in relation to possible damage and [Office of Workers' Compensation] claims; Reimburse employees for out-of-pocket medical care costs for illness associated with fumes during that period; Pay for the reasonable cost of medical examinations to ascertain whether they sustained damage due to exposure to fumes.

Id. at 19.(3) In ordering such relief, the Arbitrator rejected the Agency's argument that the FECA is the exclusive means for the restoration of leave and medical care payments. The Arbitrator found, instead, that under the subsequently enacted hazard pay provisions, as well as the parties' agreement, the employees were entitled to the relief requested.

III. Positions of the Parties

A. The Agency's Exceptions

The Agency contends that the Arbitrator's award is deficient because it: (1) is contrary to law if interpreted as awarding 25 percent hazard pay to the grievants; (2) fails to resolve the issue of entitlement to hazard pay and, therefore, cannot be implemented; and (3) violates law by directing the restoration of leave, reimbursement of medical expenses, and the payment for physical examinations.

More specifically, as to the first exception, the Agency contends that the Arbitrator failed to make the necessary findings which would entitle employees to hazard duty pay. According to the Agency, hazard duty pay for General Schedule employees is paid when employees are exposed to a hazard based on the duties assigned to them, and not when accidental exposure to unknown environmental conditions occurs. In this regard, the Agency contends that the grievants were not assigned hazardous duty and that the conditions in their working environment were not shown to have posed an unusual hazard. The Agency argues that, at most, there was an accidental exposure to unknown and unexpected environmental conditions. Under these circumstances, the Agency argues that the Arbitrator could not find an entitlement to hazard duty pay and, therefore, that the award of such pay is contrary to law.

In its second exception, the Agency contends that the "award cannot be implemented as written." Exceptions at 5. The Agency explains that by directing it to petition OPM for authorization to provide hazard duty pay, the award is not clear as to whether hazard pay is authorized. The Agency states that absent further clarification, it cannot comply with this portion of the award.

In its final exception, the Agency contends that the award contravenes the FECA. The Agency claims that in enacting the FECA, Congress provided a "comprehensive statutory framework" for addressing employee claims for physical examinations, reimbursement of medical expenses, and reimbursement for leave. Id. at 6. The Agency also argues that the FECA provides the exclusive remedy for Federal employees seeking compensation for work related injuries suffered during employment and that no other procedure, such as a negotiated grievance procedure, can be used to pursue recovery. In support, the Agency relies on Lockheed Aircraft Corp. v. U.S., 460 U.S. 190 (1983) (Lockheed).

B. The Union's Opposition

The Union generally disputes the Agency's exceptions and contends that they represent nothing more than an attempt to relitigate the merits of the dispute before the Authority. In this regard, the Union contends that the Arbitrator examined pertinent law governing the payment of hazard duty pay, and that his award is fully consistent with those authorities. The Union also states that the Arbitrator's order that the Agency pay hazard duty pay must be followed unless the Authority finds that such pay is not authorized. The alternative remedy directed by the Arbitrator--to petition OPM to provide for hazard duty pay in such circumstances--only becomes operative, according to the Union, if the Authority reverses the award of hazard duty pay.

Finally, the Union contends that the Arbitrator's award concerning restoration of leave, reimbursement for medical costs, and the provision of medical exams is fully supported by the record and is fully consistent with his remedial authority. The Union contends that the Agency is incorrect in its assertion that the FECA precludes the remedial relief directed by the Arbitrator because the FECA is "designed to protect the [G]overnment from suits filed pursuant to statutes that waive the [G]overnment's sovereign immunity . . . [,]" and also because the exclusive liability provisions of the FECA do not extend to remedies issued under negotiated grievance procedures. Opposition at 15-16. The Union also argues that the FECA is inapplicable because "the nature of the injuries suffered by the grievants are not the type contemplated by the FECA[.]" Id. at 17. Finally, the Union states that there are many other Federal statutes which "authorize the payment of compensation for personal injuries, notwithstanding FECA[,]" and that the mandatory grievance procedure contained in the Statute is an example of a legislative means of obtaining compensation for a breach of contractual duties. Id.

IV. Analysis and Conclusions

A. Agency's First and Second Exceptions

First, the Agency contends that the award is contrary to law if interpreted as requiring the Agency to award 25 percent hazard pay to the grievants. Second, the Agency asserts that the award fails to resolve the issue of entitlement to hazard pay and, therefore, cannot be implemented.

We note initially that the Arbitrator rendered an award of hazard duty pay, only to the extent that current regulations authorize such payments. Alternatively, the Arbitrator directed the Agency to petition OPM for an amendment to its regulations. In the absence of any exception to the alternative remedy, we could find that the award, which merely requires parties to take actions consonant with law, is not deficient as being contrary to law. However, both parties argue that the Authority must decide whether the Arbitrator could properly direct the Agency to pay hazard duty pay. Because the parties have essentially interpreted the award as requiring such payment, and in order to avoid the need for further clarification which the Agency states would be necessary before compliance with the award could be effected, we will address the Arbitrator's substantive findings as to employee entitlement to hazard pay.

Hazard pay differentials are authorized by the Hazardous Duty Act, 5 U.S.C. § 5545, and the implementing regulations contained in 5 C.F.R. §§ 550.901 et seq., and Appendix A to 5 C.F.R. Part 550 (Schedule of Pay Differentials Authorized for Irregular or Intermittent Hazardous Duty). Hazard pay differentials apply to employees, such as the grievants, who are covered by Chapter 51 of title 5 of the United States Code. Hazard pay differentials are based on a schedule established by OPM and set forth in Appendix A to 5 C.F.R. Part 550, Subpart I. 5 C.F.R. § 550.904 states, in pertinent part, that "[a]n agency shall pay the hazard pay differential listed in Appendix A to an employee who is assigned to and performs any irregular or intermittent duty specified in the appendix when that duty is not usually involved in carrying out the duties of his position."

The Agency contends that hazard duty pay can be paid when employees are assigned duties which expose them to hazards and that the grievants were not assigned any hazardous duties. Consequently, the Agency argues that the Arbitrator could not find an entitlement to hazard duty pay under the circumstances presented here. We agree.

As noted, the regulations prescribed by OPM create an entitlement to hazard pay for employees who are assigned to and perform any irregular or intermittent duty specified in Appendix A, when that duty is not usually involved in carrying out the duties of the employee's position. Among the duties specified in Appendix A is exposure to hazardous agents, including working with or in close proximity to toxic chemical materials.

The Arbitrator interpreted the regulations as "focus[ing] on the potentiality of health hazards . . ." and authorizing hazard duty pay for exposure to toxic chemical hazards. Award at 14. The Arbitrator determined that because employees worked in proximity to danger from toxic chemical fumes, and were subjected to such danger on an intermittent basis throughout the time they were co-located with the urethane manufacturer, the employees were entitled to hazard pay.

In our view, the Arbitrator failed to make a finding that is a necessary prerequisite to the awarding of hazard duty pay. As a threshold matter, the regulation authorizes hazard pay to employees who are assigned to and perform irregular or intermittent duties that are specified in Appendix A. The employees here had not been assigned duties that are specified in Appendix A. Although Appendix A lists working with or in close proximity to toxic chemical materials, there is no indication in the record, and the Arbitrator did not find, that the employees are assigned to and perform irregular or intermittent duties involving toxic chemicals. Consequently, there is no basis on which to authorize hazard duty pay.

In contrast, the circumstances under which the Authority has found hazard pay to be warranted are those in which employees performed, on an irregular or intermittent basis, duties that were contained in Appendix A. For example, in U.S. Department of Labor and National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO, 19 FLRA 300 (1985), the Authority sustained an arbitrator's award ordering hazard pay for industrial hygienists who inspected an explosives plant. However, in Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 35 FLRA 14 (1990), we found that an arbitrator correctly determined that there was no entitlement to hazard pay because Appendix A did not list the item for which the hazard pay was sought.

For the reasons set forth above, we find that OPM regulations do not authorize hazard pay in the circumstances presented in this case and the Arbitrator could not properly order such payment. Consequently, to the extent the award could be read as requiring the Agency to pay hazard duty pay, the award is deficient.

However, the Arbitrator's alternative order, that the Agency petition OPM to amend its regulations, to which no exception was filed, is not deficient. 5 C.F.R. § 550.903(b) specifically permits agencies to file requests with OPM seeking to amend Appendix A. The Arbitrator's order was, thus, fully consistent with the regulation. See also Veterans Administration Medical Center, Leavenworth, Kansas and American Federation of Government Employees, Local 85, 24 FLRA 902 (1986) (arbitrator's order directing agency to request amendment to OPM regulations found not deficient).

In sum, we find that the portion of the award which has been interpreted as directing the Agency to pay hazard pay is deficient as being inconsistent with regulations governing hazard pay. The award will be modified to strike this portion. However, the portion of the award directing the Agency to petition OPM to amend the regulations is not deficient.

B. Third Exception

The Agency argues that the award is inconsistent with law by directing the restoration of leave, reimbursement for medical expenses, and the payment for physical examinations.

For the reasons set forth below, we conclude that the Arbitrator had the authority to direct the Agency to restore the leave of the grievants and that this portion of his award is not deficient. However, we find that the portions of the award reimbursing employees for medical expenses and providing physical examinations are contrary to law insofar as such matters can only be provided in accordance with the FECA. Accordingly, we will modify the award by striking the portions that are inconsistent with law.

As noted previously, in addressing the contentions raised by the parties as to this exception, the Authority requested an advisory opinion from DOL concerning the applicability of the FECA to the matters in dispute. The parties were given an opportunity to respond to DOL's Opinion.(4)] The Opinion, and the parties' comments will now be considered.

1. DOL Opinion

On June 21, 1990, the Authority submitted the following question to the Secretary of Labor in accordance with section 7105(i) of the Statute:

Does the FECA and the administrative process of the Office of Workers' Compensation Programs (OWCP) under 20 C.F.R. chapter I preclude the filing of grievances or the granting of remedies under the FSLMR Statute, 5 U.S.C. §§ 7101-7135, concerning personal injuries sustained by Federal employees during the course of Federal employment?

 On December 10, 1990, the Authority received the Opinion from DOL's Office of Workers' Compensation Programs (OWCP), which is responsible for interpreting and administering the FECA. As explained by OWCP, the Secretary of Labor is vested with "complete and exclusive authority" to decide all issues relating to whether a Federal employee can be compensated under the FECA for injuries sustained in the performance of duties. Opinion at 1. The OWCP stated that the FECA is a "comprehensive statute that deals specifically with every aspect of an employee's right to be compensated for a job-related injury." Id. at 2. Regulations prescribed by the Secretary to effectuate the FECA are Government-wide and controlling in all cases where injured Federal employees seek benefits related to the injury.

The OWCP noted that the Secretary's exclusive authority to resolve issues concerning compensability extends to all matters "relating to medical care and treatment including the amount that will be expended from the Employees' Compensation Fund in obtaining and paying for the authorized services." Id. The OWCP further noted that "employing agencies, such as the IRS, have no authority to either decide issues arising under the FECA or issue decisions awarding or denying benefits under that Act." Id.

The OWCP then considered whether issues similar to those reserved for determination by the Secretary under the FECA could be considered by an arbitrator. The OWCP expressed the view that even if an arbitrator's consideration of such issues did not conflict with the Secretary's statutory authority "the imposition of liability on the United States for injury of a federal employee by any means other than the FECA would appear to violate 5 U.S.C. 8116(c)."(5) Id. at 3. The OWCP noted, contrary  to an argument advanced by the Union, that the FECA "does apply to the kinds of illnesses allegedly sustained by the grievants in this case." Id. at 4. In support of this assertion, OWCP noted that at least two claims involving the grievants for benefits under the FECA had been accepted by OWCP and that the FECA "is designed to compensate any employee who sustains a disabling occupational disease resulting from exposure at the workplace, as well as those who sustain traumatic injuries." Id.

The OWCP further stated that section 8116(c) of the FECA was designed to protect the Federal Government not only from suits under statutes such as the Federal Tort Claims Act, but also from any liability imposed on it in favor of injured employees through a direct judicial proceeding. Id. On the other hand, OWCP also noted that "§ 8116(c) merely prohibits the imposition of liability, it does not expressly preclude an agency from agreeing to provide additional benefits, provided the agency has the authority to do so." Id. The OWCP noted, in this connection, that if an agency had such authority and entered into a valid collective bargaining agreement empowering the arbitrator to make the award in question, "the 'liability' would not be 'imposed,' contrary to § 8116(c), but voluntarily accepted by the agency." Id. The OWCP also noted, however, that any matter comprehensively dealt with in the FECA, "including medical expense payments, made out of the Employees' Compensation Fund[,]" would not be a subject over which an agency could bargain because such determinations are within the Secretary's exclusive jurisdiction. Id.

The OWCP found, however, that the FECA "does not specifically govern the actions of employing agencies with regard to either the use of leave or the restoration of leave." Id. at 5. Consequently, the OWCP stated that "[b]ecause the Secretary does not have final decision-making authority with regard to this issue, we do not believe that the arbitrator's order directing restoration of leave conflicts with the provisions of the FECA." Id. The OWCP also found that "employing agencies, such as the IRS, do have authority in certain circumstances, separate from that granted to the Department of Labor under the FECA, to conduct and pay for medical examinations where necessary for personnel determinations." Id.

Finally, OWCP rejected the Union's assertion that the FECA is not the exclusive remedy because other laws provide relief to employees injured in the course of employment. The OWCP compared the remedies provided by the other laws identified by the Union with the FECA remedies and determined that they affirmed rather than negated the exclusivity of the FECA. Id. at 6. The OWCP did concede, however, that other laws may provide overlapping relief or mandate agency action and cited the OSHA as an example.

2. Parties' Comments Concerning DOL's Opinion

The Agency agrees with the substance of DOL's Opinion as it pertains to the exclusivity of benefits under the FECA. The Agency disagrees, however, with OWCP's findings concerning leave restoration and medical cost reimbursement. The Agency contends that if the Arbitrator directed the Agency to restore leave as a make whole remedy, rather than under a buy-back procedure set forth in the FECA, the award constitutes "an award of back pay" and is prohibited by law. Agency Submission at 2. In this regard, the Agency contends that because "there was no adverse action taken against any of the grievants, . . ." the prerequisite for an award of backpay has not been met and this portion of the award is contrary to the Back Pay Act. Id. Finally, the Agency contends that the provision of free medical examinations and medical cost reimbursement also constitutes a monetary award and, as it is unsupported by a finding of an adverse action, it is also barred by the Back Pay Act. The Agency states that the Arbitrator did not cite to any contract provision in which the Agency agreed to "such a benefit[,]" and that the award "exceeds the benefits authorized by 5 U.S.C. § 7901 which are implemented in [Federal Personnel Manual] FPM Chapter 792." Id. at 2, 3.

The Union contends that OWCP's conclusion that issues relating to the FECA are outside the scope of the grievance procedure and collective bargaining is erroneous. The Union argues that challenges to an agency's violation of law fall within the statutory definition of grievance and are subject to a negotiated grievance procedure. The Union also notes that only matters that are specifically provided for by law are excluded from the statutory definition of condition of employment, but that here, "the employing agencies [sic] discretionary decisions under FECA may be negotiated." Union Submission at 3. Finally, it contends that the grievances in this case do not arise solely under the FECA but rather under the parties' collective bargaining agreement. The Union asserts that the notion of exclusivity contained in 5 U.S.C. § 8116(c) does not address the Government's liability under grievance arbitration. In fact, the Union adds, DOL found that agencies have authority, separate and apart from the FECA, to provide the remedies of leave restoration and payment of medical expenses. The Union contends that the Arbitrator's make whole remedy for a contract violation is consistent with this authority and, also, with the Back Pay Act.

3. Restoration of Leave Is Not Contrary to Law

We conclude that the portion of the Arbitrator's award directing the Agency to restore unit employees' leave is not contrary to law.

In its exceptions to the award, the Agency argues that the FECA provides the exclusive procedure for the restoration of leave. In its response to DOL's Opinion, the Agency argues that the Arbitrator did not order restoration of leave in accordance with the buy-back procedure specified in the FECA but, rather, ordered restoration of leave as part of a make whole remedy. The Agency characterizes the Arbitrator's make whole remedy as an award of a monetary benefit that constitutes an award of backpay. The Agency then argues that because no adverse action was taken against any of the grievants, the award of backpay violates the Back Pay Act.

This exception provides no basis for finding the award deficient. First, we note DOL's statement that the FECA "does not specifically govern the actions of employing agencies with regard to either the use of leave or the restoration of leave." Opinion at 5. DOL indicated, by way of example, that employing agencies can exercise their discretion and allow employees to buy back any leave used in order to receive compensation for an injury.(6) However, DOL further found that the Arbitrator's order directing restoration of leave did not conflict with the FECA. To the extent the Agency argues that the FECA constitutes the exclusive procedure for restoring leave, the Agency's exception lacks merit. Thus, the agency that is charged with administering the provisions of the FECA--namely, DOL--has determined that the FECA does not preclude the Arbitrator's remedy in this case. We agree with DOL and find that the Arbitrator's award directing the restoration of leave is not contrary to the FECA.

The Agency's claim that the award violates the Back Pay Act also lacks merit. Contrary to the Agency's assertion, restoration of leave is an appropriate remedy under the Back Pay Act, 5 U.S.C. § 5596, when an employee has incurred the use of leave as the result of an unjustified or unwarranted personnel action. See, generally, Department of the Air Force, Kirtland Air Force Base and American Federation of Government Employees, Local 2263, AFL-CIO, 19 FLRA 260 (1985), in which the Authority discussed the requirements of the Back Pay Act in connection with the use of sick leave. Moreover, it is well established that an arbitrator's finding of a contract violation constitutes a finding of an unwarranted or unjustified personnel action for purposes of the Back Pay Act. See, e.g., U.S. Department of Labor, OIPA and American Federation of Government Employees, AFL-CIO, Local 12, 26 FLRA 368 (1987), Decision on Reconsideration, 27 FLRA 109 (1987).

In this case, the Arbitrator found that the Agency violated the parties' agreement by failing to provide a safe and healthful workplace. The Arbitrator further found that employees had become ill as a result of their exposure to MEK, and that such illness necessitated the use of leave by some of the employees. In view of the Arbitrator's findings with regard to the contract violation, and the connection he found between the use of leave and the basis for the contract violation, we conclude that the Arbitrator made the requisite findings under the Back Pay Act for an award ordering restoration of leave.

Consequently, for the reasons set forth above, this portion of the award is not deficient.

2. Reimbursement for Medical Expenses and Payment for Medical Examinations Is Contrary to Law

In directing the Agency to reimburse employees for medical care costs and to pay for medical examinations, the Arbitrator relied on Section 7 of the parties' agreement. That section states, in pertinent part, that "the arbitrator shall possess the authority to make an aggrieved employee whole to the extent such remedy is not limited by law[.]" Award at 15. In our view, the award of reimbursement or payment in this case is limited by law, namely the FECA.

In this regard, the Agency asserts in its exceptions that the portions of the award directing reimbursement for medical expenses and the provision of physical examinations is contrary to the FECA. The Agency argues that 5 U.S.C. § 8116(c) provides an exclusive remedy which precludes the use of a negotiated grievance procedure. In support, the Agency relies on Lockheed. In its response to DOL's Opinion, the Agency also asserts that this portion of the award is contrary to the Back Pay Act, and exceeds the benefits authorized by 5 U.S.C. § 7901, as implemented in FPM Chapter 792.

The Union argues that the exclusivity provision of the FECA was designed to protect the Government from suits involving statutes that waive the Government's sovereign immunity, and does not extend to remedies ordered under a negotiated grievance procedure. The Union also argues that the injuries suffered by the grievants here are not the type of injury contemplated by the FECA. In its response to DOL's Opinion, the Union acknowledges that DOL "is the sole authority empowered to decide" FECA claims and that "an arbitrator cannot decide a FECA claim." Union Submission at 4. However, the Union argues that the claim does not arise out of the FECA but, rather, out of the parties' agreement.

In describing the authority of the Secretary of Labor to administer the provisions of the FECA, DOL states that "[t]he Secretary's exclusive authority extends . . . to all questions under the FECA relating to medical care and treatment including the amount that will be expended from the Employees' Compensation Fund in obtaining and paying for the authorized services." Opinion at 2. More particularly with regard to transportation expenses, DOL states that only the Secretary is authorized to decide questions concerning such payments and that the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023 (1988) (Naval Weapons Station), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989), was not in accord with such authority. DOL further states that the Authority erred in finding, in Naval Weapons Station, that FPM Chapter 810 authorizes agencies to pay transportation expenses.

In its Opinion, DOL also found that the particular illness alleged to have been sustained by the grievants in this case falls within the FECA's jurisdiction. In this regard, we note that under regulations prescribed by the Secretary to implement the provisions of the FECA, "[o]ccupational disease or illness" includes, among other things, "exposure to hazardous elements such as, but not limited to, toxins, poisons, fumes[.]" 20 C.F.R. § 10.5(a)(16). DOL also states in its Opinion, however, that "in certain circumstances," agencies, such as the IRS, have authority to conduct and pay for medical examinations "where necessary for personnel determinations." Opinion at 5. DOL referenced 5 C.F.R. §§ 339.301-339.305 as providing authorization separate from that contained in the FECA.

In our view, the particular items for which the Arbitrator ordered payment or reimbursement are within the exclusive jurisdiction of the FECA and its implementing regulations and do not pertain to matters over which the Agency may have separate authority to grant payment. We reach this conclusion based on an analysis of the pertinent regulatory authorities.

The regulations implementing the FECA set forth procedures by which an employee seeking compensation for an occupational disease or illness can file claims for payment or reimbursement for various medical expenses. Such procedures are contained generally in 20 C.F.R. Part 10. Subpart E provides more specifically for the furnishing of medical treatment. Among the items described therein are services and supplies provided by or under the supervision of physicians and other medical professionals. 20 C.F.R. § 10.400(e). Claimants are entitled to receive all medical services, appliances and supplies that are prescribed or recommended and which are considered necessary for the treatment of a job-related injury. 20 C.F.R. § 10.401(a). Reimbursement for other reasonable and necessary expenses, such as those for transportation, are also authorized. Id. Bills for medical services, appliances and supplies are submitted by the provider in accordance with procedures outlined in 20 C.F.R. § 10.411. Employees who have paid for various services and supplies can seek reimbursement under the procedure contained in 20 C.F.R. § 10.412.

A review of these provisions demonstrate that they are specifically designed to cover situations where employees believe that they have sustained on-the-job injuries and are seeking payment or reimbursement for expenses connected with such injuries. We find that the grievants' claim in this case falls squarely within the scope of the regulations. Moreover, 20 C.F.R. § 10.22 states that "[t]he benefits provided to employees . . . by the [FECA] constitute the exclusive remedy against the United States for employment related injuries or deaths." In our view, the Arbitrator was not empowered to direct the Agency to make payments that are exclusively governed by the FECA's implementing regulations. Our finding in this regard should not be interpreted as holding that the Arbitrator was not empowered to hear the issues raised in the grievance or that the issues were outside the scope of the negotiated grievance and arbitration procedure. Rather, we simply find that this portion of the award conflicts with law because only DOL can authorize the payments at issue.

There are, however, occasions when an agency can pay for medical examinations apart from the provisions of the above-cited regulations. 5 C.F.R. §§ 339.301-339.305, referenced by DOL as providing separate authorization, outline situations where an agency orders or offers medical examinations in connection with medical qualification determinations. Examples of situations where an agency can order a medical examination include preappointment examination or examination of an employee who "is receiving continuation of pay or compensation as a result of an on-the-job injury or disease" for the purposes of enabling an agency to "determine medical limitations that may affect placement decisions." 5 C.F.R. § 339.301(a) and (c). Examples of situations where an agency can offer a medical examination are those in which an agency "needs additional medical documentation to make an informed management decision[,]" and include situations where an employee requests a change in duty status or assignment for medical reasons or where an employee has a performance or conduct problem which may require action by the agency. 5 C.F.R. § 339.302.

Payment of medical examinations that are ordered or offered is governed by 5 C.F.R. § 339.304, which provides that:

Agencies shall pay for all examinations ordered or offered under this subpart, whether conducted by the agency's physician or the applicant's or employee's physician. Applicants and employees must pay for a medical examination conducted by a private physician (or practitioner) where the purpose of the examination is to secure a benefit sought by the applicant or employee.

In our view, apart from the preappointment situation, medical examinations authorized under these regulations are designed to ensure that agencies make appropriate placement determinations following an employee's application for or receipt of compensation as the result of an on-the-job injury. By contrast, the Arbitrator here ordered the Agency to pay for medical examinations that precede a claim for or determination that an employee has suffered a compensable injury. Until a determination is made that an employee has suffered a compensable injury, the medical examinations can be said to be for the employee's benefit. In other words, at a stage preliminary to the filing of a FECA claim, the use of medical examinations to determine whether there is a basis on which to pursue a FECA claim is personal to the employee and for the employee's benefit. Therefore, the employee, and not the Agency, is required to pay for examinations under these circumstances.

We recognize, of course, that exposure to hazardous substances is a serious matter. Our finding that medical examinations at this preliminary stage are for the employee's personal benefit does not ignore the potential adverse consequences flowing from exposure. What we find, however, is that the relief for injuries sustained as a result of such exposure, including payment of or reimbursement for expenses, is covered by the FECA and its implementing regulations. Employees are not left without a remedy if they believe they have incurred an occupational illness. The provisions of the FECA constitute the mechanism for seeking such redress. Moreover, as previously indicated, employees who have already incurred expenses may seek reimbursement for such expenses in accordance with 20 C.F.R. § 10.412.

Additionally, we note that the FECA's implementing regulations prohibit an agency from authorizing examinations or medical or other treatment "in any case already disallowed by the [OWCP]." 20 C.F.R. § 10.403. If the Agency were directed to pay for medical examinations and a grievant's claim were disallowed, the Agency would be placed in the position of acting contrary to the regulation. In fact, the Arbitrator found that claims filed by some of the grievants had been disallowed. To now sustain the Arbitrator's order directing payment would be inconsistent with 20 C.F.R. § 10.403.

In sum, we find that the payments directed by the Arbitrator in this case--namely, reimbursement for out-of-pocket medical care costs and payment for medical examinations--are covered exclusively by the FECA. The Arbitrator was not empowered to order remedial relief that falls within the exclusive purview of the FECA and its implementing regulations. Accordingly, this portion of the award is inconsistent with law.

This is not to say that all matters relating to occupational illness are outside the scope of an arbitrator's remedial authority. For example, in American Federation of Government Employees, National Council of Field Labor Locals and U.S. Department of Labor, Mine Safety and Health Administration, Denver, Colorado, 39 FLRA 546 (1991), we sustained an arbitrator's award finding that official time and travel expenses in connection with a grievant's OWCP hearing were authorized under the parties' collective bargaining agreement.(7)  Also, as we have found in this case, the Arbitrator was fully within the scope of his remedial authority in directing the restoration of leave.

In view of our conclusion, it is unnecessary to pass on the Agency's additional contentions concerning the applicability of Lockheed (in which the Court held that 5 U.S.C. § 8116(c) did not bar a third-party indemnity action against the United States) and its claims that the award is inconsistent with the Back Pay Act and 5 U.S.C. § 7901, and its implementing regulations. Additionally, although DOL referenced OSHA as requiring an agency to take certain actions in cases involving employee exposure to toxic fumes, the parties have not cited to any provision of OSHA as being relevant to this case, and we need make no further findings as to the applicability of OSHA.

Finally, in finding that the implementing regulations of the FECA govern transportation expenses, we disavow the portion of our analysis in Naval Weapons Station finding that agencies have the authority to reimburse employees for transportation expenses. The references to FPM Chapter 810, a regulation prepared by OWCP, relate to the administration of the FECA and to reimbursement of claims by OWCP. As DOL indicates, Chapter 810 does not authorize agencies to pay such expenses.

V. Decision

The portions of the award directing the payment of hazard pay, reimbursement for medical care costs and payment for medical examinations are deficient and are struck from the award. The Agency's exceptions relating to those portions of the award directing the Agency to petition OPM and to restore leave are denied.

 

APPENDIX

Article 27 provides, in relevant part, as follows:

Section 1A

The Employer will, to the extent of its authority and consistent with the applicable requirements of Title 29 of the Code of Federal Regulations, provide and maintain safe and healthful working conditions for all employees and will provide places of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm. The Union will cooperate to that end and will encourage all employees to work in a safe manner.

Section 1C

In districts and regions the Employer will designate a safety representative for each post of duty of more than ten (10) employees; and in the National Office, a representative will be designated for each building housing bargaining unit employees. Respresentatives will be responsible for reporting to the safety officer any hazardous or unsafe conditions which they observe or which are reported to them. The Employer will, to the extent of its authority, initiate prompt and appropriate action to correct any unsafe working condition so reported.

Section 2

When the Employer discovers a violation of Occupational Safety and Health Administration (OSHA) standards, it shall immediately notify the Union of that condition. The Employer shall also notify affected employees of the condition.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The findings made by the Arbitrator were based on a summary of events provided by the Agency.

2. The pertinent provisions of the agreement, relied on by the Arbitrator, are set forth in the Appendix.

3. The Arbitrator also noted that several unit employees had filed FECA claims, and that as of the date of the arbitration hearing, two claims had been allowed and several denied. Award at 15.

4. Additionally, the Union submitted a statement to DOL that was addressed in the Opinion.

5. 5 U.S.C. § 8116(c), states:

(c) The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury . . . of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee, his legal representative, . . . and any other person otherwise entitled to recover damages from the United States or the instrumentality because of the injury . . . in a direct judicial proceeding, in a civil action, or in admiralty, or by an administrative or judicial proceeding under a workmen's compensation statute or under a Federal tort liability statute.

6. 20 C.F.R. § 10.310, referenced by DOL with regard to the buy-back procedure, provides, in part:

(a) An employee who sustains a job-related disability may use sick or annual leave or both to avoid interruption of income. If the employee uses leave during a period of disability caused by an occupational disease or illness, and a claim for compensation is approved, the employee may, with the approval of the employing agency, "buy back" the used leave and have it recredited to the employee's account. . . .

(b) If the employing agency does not approve a repurchase of leave, then no compensation may be paid for the period leave was used. Where the agency agrees to the leave repurchase, the employee may elect to have the compensation payable for the period paid directly to the employing agency to be applied against the amount due the agency to effect the repurchase.

 7. In contrast to transportation expenses that are specifically enumerated in connection with the provision of medical services, travel expenses for claimants in connection with OWCP hearings are not specifically covered by the F