40:0958(80)AR - - AFGE Local 1592 and Air Force, Ogden Air Logistics Center, Hill AFB, UT - - 1991 FLRAdec AR - - v40 p958
[ v40 p958 ]
The decision of the Authority follows:
40 FLRA No. 80
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Norman Brand filed by the Union 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 Agency filed an opposition to the Union's exceptions.
The Arbitrator denied a grievance over the Agency's failure to provide cold weather protective clothing to four employees when they were required to work outside. For the following reasons, we find that the Union has failed to establish that the award is deficient. We will, therefore, deny the exceptions.
II. Background and Arbitrator's Award
The Agency's facility is located in an area of the country that experiences extremely cold weather during the winter. Certain employees who work on the flightline are permitted to request from the Agency safety boots that are specifically designed for cold weather. Employees who work in the facility's air freight terminal receive certain foul weather gear in accordance with an arbitration award issued in 1975. In addition, fuelers who work on the flightline are provided with special clothing. Generally, maintenance employees work inside hangars repairing and maintaining engines. However, certain large aircraft cannot fit into hangars and, on occasion, there is a lack of hangar space for even the smaller aircraft. When these situations have arisen, employees have been required to do some work outside.
Four employees who maintain jet engines were required to work outside and requested cold weather protective clothing from the Agency. Their request was denied. The Agency agreed that, in order for the employees to be able to work safely, the existing weather conditions required protective clothing such as parkas and thermal underwear. However, the Agency did not believe that it was authorized to issue cold weather clothing in light of the provisions of AFM 67-1, Vol. II, relating to the issuance of such equipment to employees.(1) Accordingly, the Agency sought guidance from the Air Force Logistics Command Headquarters at Wright-Patterson Air Force Base as to whether it could provide cold weather protective clothing to the grievants.
The Agency was advised that, in the Headquarter's view, the clothing requested was not required to protect employees from exposure to physical hazards, but rather was necessitated by the climatic conditions in Ogden, Utah. Therefore, the Headquarters concluded that, as the pertinent provisions of AFM 67-1 mandated that civilians provide for themselves clothing appropriate to the climatic area in which they live, the Agency was not authorized to issue cold weather clothing to the grievants.
A grievance was filed over the Agency's refusal to provide the protective clothing. The grievance was not resolved and was submitted to arbitration on the following stipulated issue:
Did Ogden AFLC violate Section 25.05 of the MLA by failing to provide cold weather protective clothing to the four individuals who filed grievance 89-02-06, when they were required to work outside? If so, what is the remedy?
Award at 2.
Before the Arbitrator, the Union argued that, as the Agency issues foul weather gear to other civilian employees working outside, the refusal to provide the clothing to the grievants constituted "disparate treatment." Id. at 7. The Union further contended that the Agency's obligation to provide the requested clothing was established in Section 25.05 of the parties' collective bargaining agreement.(2) According to the Union, when the employees' workload changed to include outdoor winter work, the Agency was obliged, in accordance with that section of the agreement, to seek a change in Air Force regulations so that it could issue protective clothing to the grievants.
The Arbitrator concluded that the Agency did not violate the collective bargaining agreement. The Arbitrator found that "Section 25.05 is clear and unambiguous. It provides that the issuance of protective equipment will be strictly governed by the criteria contained in applicable Air Force Regulations and Directives." Id. at 8. The Arbitrator found that "[o]n its face, the relevant Air Force policy requires civilians to provide clothing appropriate to the climatic conditions in which they work." Id. The Arbitrator noted that the Union had cited no rule, directive, or other authority requiring or permitting the Agency to provide civilian employees with clothing to protect them from the winter cold in Ogden, Utah. Although noting that the Agency does provide some equipment to certain employees pursuant to an earlier arbitration award and to other employees in accordance with an agreement, the Arbitrator concluded that neither of such actions "can substitute for the specific regulation or directive required" by the collective bargaining agreement. Id. at 9.
In conclusion, the Arbitrator held that while "the Union may consider it disparate treatment that only certain employees working on the flightline receive 'foul weather' equipment, 'equal treatment' is not the standard . . . to which the Union and Agency have agreed. Rather, in accordance with Section 25.05, they have agreed that issuance of protective equipment will be 'strictly governed by criteria' which are contained in appropriate Air Force policies, regulations, and directives." Id. As the Arbitrator found that those criteria "neither require nor permit the issuance of 'foul weather gear'" to the grievants, the Arbitrator denied the grievance. Id.
III. The Union's Exceptions
The Union contends that the Arbitrator's award is deficient because it "violates law; specifically, 5 U.S.C. 7701(c)(2)(A), harmful error, and the collective bargaining agreement." Exceptions at 1. Specifically, the Union argues that the Arbitrator "erred when he failed to consider that exposure to wind chill, extreme cold temperatures, and frostbite" constitutes a "physical hazard" which would allow for the issuance of protective clothing under Air Force regulations. Id. at 2.
The Union disputes the Arbitrator's conclusion that the Union cited no rule, directive, or other authority which would support the Union's contentions. Rather, the Union asserts that the "record is replete with applicable contractual, regulatory, and binding arbitrator authority" authorizing the issuance of protective clothing. Id. The Union maintains that the applicable provisions of AFM 67-1, Vol. II allow for such issuance. Finally, the Union asserts that the record establishes that some Agency employees do receive cold weather gear and that, as "[e]qual treatment is the mainframe [sic] of American society[,] . . . [t]o deny certain individuals the same treatment . . . that others enjoy, flies in the face of equal treatment and equal opportunity in the work place." Id. at 2-3.
IV. The Agency's Opposition
The Agency argues that applicable Air Force policy requires civilian employees to provide their own clothing appropriate for seasonal climatic conditions and that the Agency's provision of protective clothing is contingent upon a determination that the climate conditions being experienced are not normal for the geographic area in which employees are required to work. Accordingly, the Agency asserts that, as the Union provided no regulatory or other authority for the issuance of foul weather gear to the grievants, the Arbitrator's award is consistent with the collective bargaining agreement and applicable regulations and is, therefore, not deficient.
V. Analysis and Conclusions
We conclude that the Union's exceptions provide no basis for finding that the Arbitrator's award is deficient. We construe the Union's exception that the award violates the collective bargaining agreement as a contention that the award fails to draw its essence from the agreement because the Arbitrator concluded that Section 25.05, and the applicable governing authorities referenced in that section, do not require the Agency to provide protective clothing in the circumstances of this case. For an award to be found deficient because it fails to draw its essence from a collective bargaining agreement, it must be demonstrated that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact, and so unconnected with the wording and the purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) evidences a manifest disregard of the agreement; or (4) does not represent a plausible interpretation of the agreement. See, for example, U.S. Department of the Air Force, Ogden Air Logistics Center, Hill Air Force Base, Utah and American Federation of Government Employees, Local 1592, 35 FLRA 1267, 1270-71 (1990).
The Union has not demonstrated that the Arbitrator's interpretation of the parties' agreement renders the award deficient under any of the tests set forth above. Furthermore, the Union has not demonstrated that the Arbitrator's interpretation of the pertinent provisions of AFM 67-1, Vol. II is incorrect. Both the Agency's Command Headquarters and the Arbitrator determined that AFM 67-1 precluded the Agency's issuance of cold weather clothing to the grievants, and the Union fails to establish otherwise. We find that in disputing the Arbitrator's conclusion, the Union is merely disagreeing with the Arbitrator's interpretation of the parties' agreement and applicable Agency