41:0246(24)AR - - Air Force, Langley AFB, Hampton, Virginia and NAGE Local R4-106 - - 1991 FLRAdec AR - - v41 p246
[ v41 p246 ]
The decision of the Authority follows:
41 FLRA No. 24
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on an exception to an award of Arbitrator Richard I. Bloch 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 did not file an opposition to the Union's exception.
The Arbitrator denied a grievance alleging that the grievants were entitled to Environmental Differential Pay (EDP) because they were exposed to toxic chemicals.
For the following reasons, we conclude that the Union's exception provides no basis for finding the Arbitrator's award deficient. Accordingly, we will deny the exception.
II. Background and Arbitrator's Award
The grievants, who are boiler-plant operators, test boiler water samples using chemicals in a reagent kit. In the course of their duties, they are required to mix the chemicals used to test the boiler water. The grievants filed a group grievance alleging that they "were exposed to hazardous, flammable or explosive boiler water testing reagents[.]" Award at 1. The grievance was submitted to arbitration. As relevant here, the Arbitrator stated that the issue before him was:
Whether the particular job duties qualify the [grievants] for Environmental Differential Pay under Appendix J, FPM, Supplement 532-1.
Id. at 2.
The Arbitrator stated that the standards set forth in Appendix J of FPM Supplement 532-1 (FPM Supplement) "discuss and evaluate both the hazards levels and the protective and safety measures in effect." Id. at 6. The Arbitrator noted that the FPM Supplement was incorporated into Article 14 of the parties' collective bargaining agreement.
The Arbitrator concluded, based on the evidence before him, that "while there may be some potential exposure in certain limited instances to toxic chemicals, . . . the nature of the duties and safety equipment issued and worn is fully adequate to protect life and limb." Id. at 8. The Arbitrator stated, in this regard, that the grievants used chemicals in small amounts and in a highly diluted form. The Arbitrator also stated that, apart from the way in which the chemicals were used, there was "no showing whatsoever that the chemicals actually utilized . . . are in any way unduly hazardous." Id.
The Arbitrator concluded further that, to the extent that the grievance concerned "a broader claim over potential dangers inherent in the boiler chemicals, this claim has not been supported." Id. at 9. The Arbitrator found that although the chemicals could be considered hazardous under certain circumstances, the Union had presented no evidence to dispute the fact that the potential for injury has been practically eliminated by the safety equipment issued to all grievants, including face masks, rubber gloves and aprons. According to the Arbitrator, there was no evidence to indicate that, "in the normal course of affairs, the safety equipment does not reasonably deal with the potential for hazard." Id.
The Arbitrator concluded that "having considered their exposure and the protective garments in the context of day-to-day operations, there is no reason to conclude that the workers in the boiler house are entitled to the Environmental Differential Pay." Id. at 10. Accordingly, he denied the grievance.
III. Union's Exception
The Union contends that the Arbitrator's decision "is an erroneous interpretation of the law, rules and regulations." Exception at 1. In particular, the Union contends that "the toxic chemicals present at the Boiler Plant, i.e. sodium hydroxide, combined with the Boiler Operator's job assignments constitute a potential severe hazard and that the protective gear and safety procedures have not practically eliminated the potential severe hazard." Memorandum In Support Of Exception at 5.
In support of its exception, the Union relies on testimony and documentary evidence presented at the arbitration hearing. First, the Union asserts that several grievants testified that, among other duties, they are responsible for handling and storing toxic chemical agents, cleaning and removing chemical storage drums, transferring chemical agents between containers and visually examining chemical agents to detect leaks in storage containers. According to the Union, the grievants also testified that they are responsible for inspecting boilers which contain toxic chemicals and testing boiler water samples by using hazardous toxic chemicals. The Union claims that the grievants' testimony is supported by various documents introduced at the hearing and by testimony from an expert witness, who concluded that the grievants were in contact with toxic chemicals on a daily basis. The Union maintains, therefore, that it established that the grievants work with potentially hazardous and toxic chemicals.
The Union also contends that the hazard has not been practically eliminated. In this regard, the Union notes that an expert witness testified that the grievants' protective equipment was inadequate to protect them from serious injury.
Finally, the Union claims that the award is based on an erroneous interpretation of the FPM Supplement. The Union argues that the Arbitrator improperly denied EDP based on his conclusion that a serious accident resulting from the use of the disputed chemicals was not likely. According to the Union, the "Arbitrator improperly equates the term 'practically eliminated' with 'probability.'" Id. at 11.
IV. Analysis and Conclusions
There is no dispute that the grievants' entitlement to EDP in this case is governed by the FPM Supplement and that the Supplement requires findings that: (1) the grievants work with or in close proximity to toxic chemicals which involve potential serious personal injury; and (2) safety measures either do not exist or have been developed but have not practically eliminated the potential for such serious personal injury. See U.S. Department of the Army, McAlester Army Ammunition Plant, McAlester, Oklahoma and American Federation of Government Employees, Local 2815, 36 FLRA 434, 438 (1990) (both requirements must be satisfied to establish an entitlement to the differential). The Arbitrator applied these standards and concluded, based both on the chemicals involved and the safety equipment issued to the grievants, that the grievants were not entitled to EDP.
The Union disagrees with the Arbitrator's findings, arguing that the evidence before the Arbitrator demonstrates that the grievants are entitled to EDP. The Union has not, however, demonstrated that the award conflicts with the FPM Supplement or is deficient on any ground set forth in section 7122 of the Statute. Instead, the Union's exception constitutes mere disagr