44:0157(15)AR - - Air Force, HQ, Ogden Air Logistics Center, Hill AFB, UT and AFGE Local 1592 - - 1992 FLRAdec AR - - v44 p157
[ v44 p157 ]
The decision of the Authority follows:
44 FLRA NO. 15
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF THE AIR FORCE
HEADQUARTERS, OGDEN AIR LOGISTICS CENTER
HILL AIR FORCE BASE, UTAH
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
February 28, 1992
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 Michael D. Rappaport 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 Union filed a grievance alleging that the Agency violated the parties' Master Labor Agreement and applicable laws and regulations by refusing to grant administrative leave to employees who had been charged either sick or annual leave when they left work during a shutdown of the Agency's ventilating system. The Arbitrator sustained the grievance, and, as a remedy, ordered the Agency to give administrative leave to any employee who could demonstrate that he or she was absent from work due to the ventilation problem and was not offered a chance to work elsewhere.
We conclude that the Agency has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we will deny the Agency's exceptions.
II. Background and Arbitrator's Award
On December 27, 1990, problems in the Agency's ventilating system in Building 507 caused a shutdown of the ventilating system from December 28, 1990, until January 16, 1991. As a result, the removal of chemical fumes from Building 507 "was impaired." Award at 1. After the Agency's industrial hygienists determined that the level of fumes was not hazardous, employees were permitted to return to work. During the period of the shutdown, however, approximately 50 employees visited the Agency's dispensary, complaining of various symptoms caused by their exposure to the fumes. The Agency liberally granted the employees' requests for leave, charging those employees with either sick or annual leave. Apparently, according to the Arbitrator, the Colonel in charge of the operation indicated to his subordinates that "alternative work sites were to be found" for those employees who were unable to perform their regular duties because of sensitivity to the fumes. Id. at 2.
A dispute arose as to whether the Agency should treat the leave charged to the employees during the shutdown as administrative leave. When the Agency claimed that administrative leave was not appropriate, the Union filed a grievance. The grievance was not resolved and was submitted to arbitration on the following stipulated issue:
Did the Agency violate the Master Labor Agreement and Agency regulations and applicable laws by not granting administrative leave for December 28, 31, and January 3, 4, and 5, 1990-1991? If so, what is the appropriate remedy?
The Arbitrator initially found that the Agency had not provided a safe working environment for the employees who had been affected by the poor ventilation, as required by Article 25.01 of the parties' bargaining agreement. In this regard, the Arbitrator found that although the Colonel in charge of the operation made a good faith effort to assure that adversely affected employees would be given the opportunity to work elsewhere, his subordinates had not complied with his orders. Therefore, the Arbitrator concluded that "it was an abuse of the Agency's discretion . . . to compel employees to come to work and subject themselves to the physical hazards which they obviously were feeling, or be forced to rely on their leave in order to avoid subjecting themselves to further illness." Id. at 3.
The Arbitrator also concluded that, under Air Force Regulation 40-630, the Agency could have used administrative dismissal to excuse those employees who were made ill by the ventilation problem and who were not offered alternative work. Accordingly, the Arbitrator ordered the Agency to give administrative leave, in lieu of any leave charged, to any employee who: (1) filed the present grievance; (2) can demonstrate that he or she missed work during the period in question solely as a direct result of the ventilation problem in Building 507; and (3) can demonstrate that he or she actually suffered physical ill effects as a result of exposure in Building 507. The Arbitrator further limited the remedy by finding ineligible any employee who had been offered, but who had refused, alternative work.
III. Positions of the Parties
A. The Agency
The Agency excepts to the award on the ground that it violates Federal Personnel Manual (FPM) chapter 810, subchapter 1-2, which covers claims filed under the Federal Employees' Compensation Act (FECA). The Respondent asserts that the FPM states that "[b]enefits provided under the FECA constitute the sole remedy against the United States for work-related injury or death[,]" and that, therefore, the Arbitrator "clearly did not have the authority to grant a remedy or benefit." Exceptions at 2-3.
B. The Union
Initially, the Union claims that the Agency's exceptions were untimely filed. The Union also asserts that it does not appear that the Agency presented the grounds for its exceptions to the Arbitrator, and argues that the Agency should not be permitted to raise them for the first time before the Authority. On the merits, the Union argues that the authority of an arbitrator to award administrative leave is not affected by the FECA. The Union contends that "[t]aken to its logical conclusion, the Agency's position would bar a whole range of grievances." Opposition at 2.
IV. Analysis and Conclusions
A. The Agency's Exceptions Are Timely
The time limit for filing exceptions to an arbitration award is 30 days beginning on the date the award is served on the filing party. 5 C.F.R. § 2425.1(b). The date of service is the date the arbitration award is deposited in the U.S. m