43:0207(19)AR - - VA and AFGE - - 1991 FLRAdec AR - - v43 p207



[ v43 p207 ]
43:0207(19)AR
The decision of the Authority follows:


43 FLRA No. 19

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF VETERANS AFFAIRS

(Agency)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

(Union)

0-AR-2109

DECISION

November 21, 1991

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 Alan Miles Ruben 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 sustained a grievance filed by the Union on behalf of employees claiming entitlement to environmental differential pay (EDP) for exposure to asbestos. He ordered the Agency to pay the grievants retroactive EDP for the period beginning 1 month prior to the filing of the grievance in October 1986 until June 1987. The Arbitrator awarded varying amounts of EDP to different categories of employees, based on his calculation of the amount of exposure to asbestos of each category of employee.

In its exceptions, the Union contends that the Arbitrator improperly limited the retroactive period for backpay and that the award does not require payment for hours in a pay status as required by regulation. For the following reasons, we conclude that the award fails to correctly state the manner and rates by which backpay will be calculated for eligible employees and we will modify the award accordingly. We will deny the Union's exception concerning the duration of the retroactive period for backpay.

II. Background and Arbitrator's Award

The Union filed a group grievance on October 31, 1986, claiming retroactive EDP for all bargaining unit employees exposed to asbestos since January 1, 1979. The grievance was not resolved and was submitted to arbitration. As amended by agreement between the parties, the issue submitted to the Arbitrator was whether wage grade employees in the bargaining unit were entitled to EDP for a period beginning 6 years prior to the filing of the grievance on October 31, 1986.

The Arbitrator determined that the parties' collective bargaining agreement provided that EDP would be awarded in accordance with Federal Personnel Manual (FPM) Supplement 532-1 and Appendix J to FPM Supplement 532-1. Appendix J authorizes EDP to persons working under the following conditions:

16. Asbestos. Working in an area where airborne concentrations of asbest[os] 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.

The Arbitrator heard extensive testimony from the Union and the Agency. He rejected the Agency's contention that the grievance was untimely and ruled that the grievance was arbitrable. The Arbitrator noted that Article 13, section 7 of the parties' agreement provided that any grievance should be filed within 30 days of when a party became aware of a violation and he ruled that the contractual limitation in Article 13, section 7 limited the time period for which an injury could be remedied to 30 days. The Arbitrator stated that "[b]y negotiating and agreeing to a time limitation of thirty days within which to invoke the grievance procedure, the Union has waived any claim in a contractual arbitration proceeding to the benefit of any longer limitations period to which it might otherwise be entitled." Award at 71. The Arbitrator concluded that "the [Agency's] motion to dismiss the instant grievance as non-arbitrable will be denied, but any award can be retroactive only to October 1, 1986." Id. at 72.

The Arbitrator examined the contentions of both parties concerning the prerequisite amount of exposure to asbestos fibers to justify the payment of EDP under Appendix J. He rejected the Agency's contention that "only if employees were exposed to concentrations exceeding 0.1 f/cc [fiber per cubic centimeter], the [Agency's] permissible exposure limit, measured as an 8-hour time-weighted average, would they be entitled to EDP." Id. at 72-73. He also rejected the Union's argument that any amount of exposure to asbestos is sufficient to require payment of EDP. The Arbitrator set the following standard each grievant would be required to meet in order to receive EDP:

For the [Agency's] facility, the Arbitrator believes the standard ought to be set at 0.005 f/cc on a time-weighted average basis. This standard is based on the "clearance level" allowed by [the Occupational Safety and Health Administration] and the Agency after an abatement project has been completed. Its attainment is thus feasible and exposure beyond this level on a time-weighted basis assures that employees working in such an environment will be compensated for the risk of being subject to potential illness.

Id. at 85.

The Arbitrator noted that there was limited data available concerning the amounts of asbestos present and the degree of exposure of various employees to asbestos during the time covered by the grievance. He stated that it was not possible, based on the record before him, "to determine with any degree of precision to what concentrations of airborne asbestos fibers particular classifications of employees were exposed on a time-weighted average." Id. at 89. The Arbitrator determined that although employees in different classifications were entitled to receive the 8 percent EDP prescribed in Appendix J because they had been "exposed to potential illness which had not been practically eliminated by protective devices or safety measures[,]" the amount of exposure for the employees varied according to their job classifications. Id. at 89-91.

According to the Arbitrator, employees were exposed to differing concentrations of asbestos fibers depending on the job classifications to which they were assigned. He ruled that current and former employees were entitled to EDP based on a calculation of the percent of time in which the employees in each job classification were exposed to airborne concentrations of asbestos fibers exceeding 0.005 f/cc during the period covered by the grievance. Thus, employees in the wage grade job classifications that received the greatest exposure, such as air conditioning mechanics and boiler plant operators, were awarded 8 percent EDP for 35 percent of "the total number of hours during which they were in a pay status and actually at work" in the classification from October 1, 1986, until June 30, 1987. Id. at 90. Employees in the classifications at the next level of exposure above 0.005 f/cc, such as carpenters and electricians, were awarded EDP of 8 percent for 20 percent of the total hours that they worked during the same time period, and employees at the lowest level of exposure above 0.005 f/cc, such as laborers and housekeeping aides, were awarded EDP of 8 percent for 10 percent of the time that they worked in the job classification. The Arbitrator ruled that the affected employees were entitled to retroactive EDP under the Back Pay Act, 5 U.S.C. § 5596, because they had been affected by an unjustified personnel action which resulted in the withdrawal of the differential. He also ruled that the affected employees were entitled to interest on the backpay under 5 C.F.R. §§ 550.805-.806.

III. Positions of the Parties

A. The Union

In its first exception, the Union asserts that the Arbitrator's decision to limit the payment of retroactive EDP to the period from October 1, 1986, until June 30, 1987, is contrary to the Back Pay Act, FPM Supplement 532-1, and 31 U.S.C. § 3702. The Union maintains that the Back Pay Act requires that payments resulting from an unjustified personnel action must include the entire period for which the unjustified personnel action was in effect and that nothing in the Act permits an arbitrator to limit that time period. The Union states that "the only permissible limitation is that found in 31 USC 3702[,]" which limits a claim against the Government to the 6 year period immediately preceding the filing of a timely grievance. Exceptions at 5. The Union cites Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091 (1990), in support of its contention that EDP must be paid retroactively for the full 6 years allowed under 31 U.S.C. § 3702.

The Union also contends that "FPM Supplement 532-1, Appendix J similarly mandates complete relief." Id. at 6. The Union cites Robins Air Force Base, Warner Robins, Georgia and American Federation of Government Employees, AFL-CIO, Local 987, 18 FLRA 899 (1985), in support of that contention. The Union also asserts that the Arbitrator erred by failing to award EDP to employees who continued to work after June 30, 1987, in those areas in which the levels of asbestos remained in excess of 0.005 f/cc.

In its second exception, the Union contends that the Arbitrator's award is contrary to FPM Supplement 532-1 because the Arbitrator failed to award EDP to entitled employees based on the hours in a pay status, but rather awarded EDP based on the number of hours that the employees actually worked. The Union states that "[t]he total time the employee was actually exposed to asbestos is irrelevant in calculating EDP under FPM Supplement 532-1." Id. at 10. The Union asks that the award be modified to require that all entitled employees receive "EDP for all hours in a particular pay status[,] . . . [including] hours paid for annual and sick leave[.]" Id. at 11. The Union also contends that EDP should to be taken into consideration when calculating premium pay and retirement benefits for affected employees.

B. The Agency

The Agency maintains that the Arbitrator set a proper limit on the payments for EDP based on his application of the parties' collective bargaining agreement and his finding that the Union was bound by the time limits set in the agreement. The Agency asserts that the award is not contrary to the Back Pay Act, FPM Supplement 532-1 or 31 U.S.C. § 3702. The Agency contends that there was no basis on which the Arbitrator was required to award relief past June 30, 1987, because he found that asbestos levels were at safe levels and, therefore, there was no requirement for further payment of EDP.

The Agency asserts that the Union's second exception is without merit because the Arbitrator's award does provide EDP to affected employees on the basis of hours in a pay status. The Agency states that the affected employees are entitled to EDP "on a time weighted average exposure basis[,]" and the Arbitrator provided a formula for calculating EDP that satisfies the requirements of FPM Supplement 532-1. Opposition at 4. The Agency maintains that the Arbitrator could properly award backpay for EDP on a percentage basis. With respect to the Union's exception concerning the entitlement to EDP for periods of leave and premium pay and for retirement benefits, the Agency claims that the employees in this case would not be entitled to EDP for those time periods. The Agency argues that it will be difficult to establish that the employees "routinely and regularly worked on a 'particular day' of the week in areas with asbestos exposure above 0.005 f/cc on a time weighted exposure basis." Id. at 6. Rather, the Agency maintains, the Arbitrator's finding that most employees do not receive continuous exposure above 0.005 f/cc on a time weighted average exposure basis indicates that employees will be unable to meet the requirements for EDP while on leave or premium pay and for retirement benefits.

IV. Analysis and Conclusions

A. The Award of Backpay from October 1, 1986 until June 30, 1987 Is Not Deficient

We reject the Union's contention that the Arbitrator's award of EDP retroactive to October 1, 1986, rather than 6 years prior to the filing of the grievance, violates the Back Pay Act, FPM Supplement 532-1, or 31 U.S.C. § 3702.

Under the Back Pay Act, an employee found to have been affected by an unjustified or unwarranted personnel action that resulted in the loss of pay or differentials "is entitled, on correction of the personnel action, to receive for the period for which the personnel action was in effect" the pay or differentials that the employee would otherwise have received if the personnel action had not occurred. 5 U.S.C. § 5596(b)(1)(A). The Union maintains that this provision of the Back Pay Act requires the Arbitrator to issue an award of backpay for 6 years, based on the statute of limitations under 31 U.S.C. § 3702 for making claims against the Government. We disagree.

The Back Pay Act only requires backpay for the amount of pay or differentials lost by an employee due to an agency's unwarranted or unjustified personnel action. 5 U.S.C. § 5596(b)(1)(A). An arbitrator can properly award backpay to remedy an unjustified or unwarranted personnel action that resulted in the loss of a differential, such as EDP for exposure to asbestos, that employees otherwise would have received. See generally U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina and Federal Employees Metal Trades Council, 39 FLRA 987, 993 (1991). However, "[n]othing in the Back Pay Act, FPM Supplement 532-1, or 31 U.S.C. § 3702 specifies the appropriate period of time for which an EDP payment is due." U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 40 FLRA 186, 193 (1991), request for reconsideration denied 40 FLRA 1032 (1991). Further, FPM Supplement 532-1, which provides guidance for the payment of EDP and in Appendix J lists the categories approved by OPM for payment of EDP, does not specify a time period for the payment of retroactive EDP. In this case, the Arbitrator found that the grievants were affected by the Agency's unjustified personnel action in violation of the parties' collective bargaining agreement and FPM Supplement 532-1 that resulted in the loss of EDP to which they were entitled. The Arbitrator also determined that the period of time for which retroactive payment was due was based on the terms of the agreement. Therefore, there is no basis on which to find the award deficient under the Back Pay Act or the FPM.

The Union's reliance on 31 U.S.C. § 3702 is misplaced. That provision states that, unless otherwise provided, a claim against the Government "must be received by the Comptroller General within 6 years after the claim accrues . . . ." We do not agree with the Union's contention that 31 U.S.C. § 3702 is applicable in this case. The issue before the Arbitrator concerned the time period for which retroactive EDP should be paid under the parties' agreement, not how much time the Union had to file a claim against the Government. The Arbitrator ruled that under the parties' agreement, the Union was entitled to an award of EDP retroactive only to 30 days prior to the filing of the grievance. There is nothing in the Arbitrator's award that is contrary to 31 U.S.C. § 3702.

The Union's exception constitutes mere disagreement with the Arbitrator's interpretation and application of the provision of the parties' collective bargaining agreement governing the retroactive period for which grievance remedies will be awarded. Disagreement with an arbitrator's interpretation of an agreement does not provide a basis for finding an award deficient. See National Federation of Federal Employees, Local 1781 and U.S. Department of Agriculture, Forest Service, 42 FLRA 703, 706 (1991). Accordingly, we will deny the Union's exception.

B. The Arbitrator's Award Relating to the Amount of EDP Is Contrary to Government-wide Regulation

The Arbitrator ordered that employees in the specified job classifications be paid EDP for exposure to asbestos based on "the total number of hours during which they were in a pay status and actually at work" in the classification from October 1, 1986, until June 30, 1987. Award at 90. We agree with the Union that the Arbitrator's use of the words "actually at work" imposes an improper limitation on the amount of EDP that those employees are entitled to receive. Consequently, the award is deficient to the extent that it is contrary to relevant provisions of the Code of Federal Regulations and the FPM. See U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 191-95 (1990) (an award that conflicts with a Government-wide rule or regulation is deficient).

Exposure to asbestos is a category of EDP which must be paid on the "basis of hours in a pay status." 5 C.F.R. Part 532, subpart E, Appendix A, Part II, Category 16 (1991); FPM Supplement 532-1, Appendix J, Category 16. An employee entitled to EDP on the basis of hours in a pay status must be paid "for all hours in a pay status on the day on which he/she is exposed to the situation." 5 C.F.R. § 532.511(b)(3). Although the Arbitrator used the words "in a pay status" in his award, the addition of the words "actually at work" implies an additional requirement that the employees were entitled to EDP only for that time during which they were exposed to asbestos while actually working. Those words also imply that EDP will not be paid for periods when the employees were absent from work while on leave.

Employees are entitled to receive EDP in certain circumstances when they are on leave and otherwise entitled to EDP based on hours in a pay status. FPM Supplement 532-1, subchapter 8-7.j(1)(a) provides that EDP "is included as part of an employee's basic rate of pay for periods of paid leave" when the employee is entitled to EDP "on the basis of hours in a pay status." An employee who is entitled to EDP on the basis of hours in a pay status "shall be paid for all hours in a pay status on the day on which he/she is exposed to the situation." 5 C.F.R. § 532.511(b)(3). See also FPM Supplement 532-1, subchapter 8-7.j(1)(c). Further, under 5 C.F.R. 532.511(c), EDP "is part of basic pay and shall be used to compute premium pay (pay for overtime, holiday, or Sunday work), the amount from which retirement contributions are made, and the amount on which group life insurance is based." Accordingly, we will modify the award to remove the words "actually at work" and clarify that the award must be implemented in accordance with applicable regulations.

We also note that the Arbitrator ordered that eligible employees be paid EDP "at the rate of 8% of their appropriate applicable hourly rates[.]" Award at 93. As written, this portion of the award appears to grant EDP based on the various individual hourly rates of the eligible employees. Under applicable regulation, 5 C.F.R. § 532.511(b)(1) (1991), employees entitled to EDP for exposure to asbestos are entitled to receive an amount equal to 8 percent "multiplied by the rate for the second step of WG-10 for the appropriated fund employees . . . on the current regular non-supervisory wage schedule for the wage area for which the differential is payable[.]" To the extent that the award requires that the Agency pay eligible employees EDP at the rate of 8 percent of the hourly rates for their individual positions, rather than 8 percent of the rate for the second step of a WG-10 position, we find the award is inconsistent with 5 C.F.R. § 532.511(b)(1) and requires clarification. Therefore, we will modify the award to comply with 5 C.F.R. § 532.511(b)(1).

V. Decision

The Union's first exception, which concerns the duration of the retroactive time period for backpay, is denied.

With regard to the Union's second exception, concerning the payment of EDP on the basis of hours in a pay status, the first paragraph on page 93 of the Arbitrator's award is modified to read as follows:

The Veterans Administ