44:0707(56)AR - - AFGE, Local 1273 and VA Medical Center, Boise, ID - - 1992 FLRAdec AR - - v44 p707



[ v44 p707 ]
44:0707(56)AR
The decision of the Authority follows:


44 FLRA No. 56

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1273

(Union)

and

U.S. DEPARTMENT OF VETERANS AFFAIRS

MEDICAL CENTER

BOISE, IDAHO

(Agency)

0-AR-2098

DECISION

March 27, 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 James A. Evenson 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 exceptions.

The Union filed grievances alleging that the Agency had neglected its obligations to monitor, test, and control asbestos in the workplace. The Union sought notice of and an opportunity to participate in the monitoring process and the payment of environmental differential pay to employees exposed to asbestos.

The Arbitrator denied payment of an environmental differential in four of the five disputed work situations. He instructed the parties to work out local procedures for monitoring and testing for asbestos and for information requests by the Union. The Arbitrator ruled that the issue of bargaining over the Agency's circular pertaining to asbestos was not properly before him, and he declined to consider an issue relating to official time to prepare for the arbitration that the Union had raised at the hearing.

We conclude that the Union fails to establish that the award is deficient. Accordingly, we will deny the exceptions.

II. Background and Arbitrator's Award

The Union filed grievances alleging that the Agency had neglected its obligations to monitor, test, and control asbestos in the workplace. The Union sought notice of and an opportunity to participate in the monitoring process and the payment of environmental differential pay to employees exposed to asbestos.

The Arbitrator identified four broad issues to be resolved: (1) whether the Agency had failed to bargain with the Union regarding an Agency circular pertaining to asbestos; (2) whether the Agency had provided the Union with proper notice of and an opportunity to observe air monitoring; (3) whether there was information that must be provided by the Agency to the Union without charge; and (4) whether employees of the Agency were entitled to environmental differential pay (EDP) for various instances of alleged asbestos exposure.

With respect to the first issue, the Arbitrator found that the Union had failed to follow the procedures of the parties' collective bargaining agreement in raising the issue. Accordingly, he ruled that the issue was not properly before him.

With respect to the second and third issues, the Arbitrator sustained the grievance. The Arbitrator instructed the parties to work out local rules and procedures or training that each could understand regarding information requests and the monitoring, testing, and sampling of asbestos, as well as the notice to be given to the Union of such matters. The Arbitrator advised that, if local procedures were not mutually agreed on, either party could contact the Arbitrator to resolve the matter. The Arbitrator retained jurisdiction for 6 months for this purpose.

With respect to the issue of EDP, the Arbitrator ruled, in general, that employees are entitled to be paid an environmental differential when the level of airborne asbestos exceeds 0.1 f/cc. He held that employees have the burden of proof so long as the Agency has monitored and sampled the workplace as required by regulations. The Arbitrator held that if the Agency has not properly monitored or sampled the workplace, the Agency has the burden of proving that employees were not exposed to asbestos in excess of 0.1 f/cc. In devising this rule, the Arbitrator rejected the Union's claim that any exposure to asbestos entitled employees to be paid an environmental differential. The Arbitrator stated he agreed with the court in O'Neall v. U.S., 797 F.2d 1576 (Fed. Cir. 1986) (O'Neall) that payment of a differential requires exposure to asbestos above some specified level. The Arbitrator further stated that this rule would apply prospectively.

As to whether employees were entitled to be paid an environmental differential with respect to five disputed local work situations, the Arbitrator awarded EDP only for removal of vinyl asbestos tile in building 27. The Arbitrator denied EDP for the other four situations. As to the four situations, he found that the removal of the asbestos-containing material was done in a proper manner and that there was no showing of exposure to asbestos in excess of 0.1 f/cc.

In his discussion accompanying the award, the Arbitrator noted that, during and after the arbitration hearing, the Union had raised the issue of whether the Agency had provided the Union appropriate amounts of official time to prepare its case. Although the Arbitrator stated that the Union would be substantially affected if the Agency had improperly denied official time, the Arbitrator declined to consider the issue.

III. First Exception

A. Union's Contentions

The Union contends that the award is deficient because the Arbitrator failed to rule on the Union's issue concerning official time. The Union explains that it sought the Arbitrator's assistance in obtaining a sufficient amount of official time to permit it to present its case at arbitration and to prepare its post-hearing brief. The Union notes that although the Arbitrator acknowledged that, if the Union's rights had been violated, the violation would have substantially affected the Union's ability to present its case, the Arbitrator refused to consider the matter. The Union claims that arbitrators must resolve all issues raised in a dispute and that, consequently, the Arbitrator was required to have resolved the Union's claim for official time.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient.

There is nothing in the record to show that the parties stipulated the issues to be resolved by the Arbitrator. As set forth in the Arbitrator's award, Article 14, Section 2(E) of the parties' collective bargaining agreement provides that "[i]f the parties fail to agree on a joint submission, each shall make a separate submission and the arbitrator shall determine the issue or issues to be heard." Award at 7 (quoting parties' agreement). Accordingly, we find that, consistent with the parties' collective bargaining agreement, the Arbitrator was entitled to determine the issues to be heard and decline to consider the issue of official time that had not been raised until the arbitration hearing. As such, we reject the Union's contention that the Arbitrator was required to resolve the issue of official time. We find that the Union is merely disagreeing with the Arbitrator's formulation of the issues to be resolved and that, consequently, the Union's exception provides no basis for finding the award deficient. See U.S. Department of the Army, Army Aviation Center, Fort Rucker, Alabama and American Federation of Government Employees, Local 1815, 40 FLRA 94, 96-97 (1991) (union failed to establish that the arbitrator failed to properly resolve the issues involved in the grievance when he decided that only three provisions of the merit placement plan were before him; in the absence of a stipulation of the issue to be resolved, the arbitrator framed the issue to be resolved, and his award was directly responsive to the issue as he framed it). Accordingly, we will deny the Union's exception.

IV. Second Exception

A. Union's Contentions

The Union contends that the award is deficient insofar as the Arbitrator required proof of exposure to asbestos at or above the level of 0.1 f/cc in order for employees to be entitled to EDP. The Union asserts that the Arbitrator's adoption of the 0.1 f/cc standard is erroneous. The Union claims that the Arbitrator improperly relied on the court's decision in O'Neall and the permissible level of asbestos exposure set by Agency regulations.

The Union argues that the Arbitrator should not have relied on the decision in O'Neall because the court in O'Neall failed to fully comprehend the regulatory scheme for asbestos control. The Union also argues that reliance on the Agency's standard of 0.1 f/cc is illogical and contrary to other arbitration awards involving these same parties. The Union maintains that the sampling process proves that the 0.1 f/cc standard is illogical. The Union explains that the 0.1 f/cc standard reflects a "time-weighted average of air-borne concentrations of asbestos over an eight hour period." Exceptions at 13 (emphasis omitted). The Union suggests that, therefore, it is possible that an employee could be exposed to asbestos concentrations for a 15-minute period, which, if endured over an entire shift, would clearly exceed the 0.1 f/cc standard, but which would actually result in a reading lower than 0.1 f/cc under the 8-hour, time-weighted average. The Union contends that such a situation, where an employee is exposed to asbestos concentrations in excess of the standard for a period of time, conflicts with the Federal Personnel Manual (FPM) provisions that instruct agencies to pay an environmental differential for asbestos exposure for a full shift whenever there is a hazardous exposure.

The Union argues that the most compelling argument for rejecting the Arbitrator's standard is that it has been consistently rejected in arbitration decisions involving these parties. Although the Union recognizes that, consistent with the private sector, the Authority holds that other arbitration awards are not precedential, the Union argues that the Authority should reconsider its approach, particularly for cases, such as this one, involving a nationwide consolidated bargaining unit.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient.

We have repeatedly stated that category 16 of FPM Supplement 532-1, Appendix J conditions the payment of an environmental differential for exposure to asbestos on findings that: (1) employees are working in areas where airborne concentrations of asbestos fibers may expose them to potential illness or injury; and (2) protective devices or safety measures have not practically eliminated the potential for such personal illness or injury. For example, U.S. Department of the Army, New Cumberland Army Depot, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 40 FLRA 186, 191 (1991) (New Cumberland Army Depot); Allen Park Veterans Administration Medical Center and American Federation of Government Employees, Local 933, 34 FLRA 1091, 1098 (1990) (Allen Park VA Medical Center II). Appendix J does not set forth any specified level of exposure required for the payment of EDP. Instead, the specific work situations for which EDP is payable under Appendix J are left to local determination, including arbitration. More particularly, category 16 does not set forth a specified level of exposure to asbestos at, or in excess of, which employees are exposed to potential illness or injury. Thus, when the parties submit a disputed local work situation involving exposure to asbestos to arbitration, the arbitrator is free to determine what quantitative level of exposure to airborne concentrations of asbestos exposes employees to potential illness and injury and to determine how that level is derived or calculated. See Allen Park VA Medical Center II, 34 FLRA at 1098; Allen Park Veterans Administration Medical Center, Allen Park, Michigan and American Federation of Government Employees, Local 933, 28 FLRA 1166, 1170 (1987). Accordingly, the Union's contentions that the adoption by the Arbitrator of the standard of 0.1 f/cc was erroneous, illogical, or contrary to FPM Supplement 532-1 provide no basis for finding the award deficient. See New Cumberland Army Depot, 40 FLRA at 191; Allen Park VA Medical Center II, 34 FLRA at 1101.

We also find that the Union's contention that the award is contrary to other arbitration decisions provides no basis for finding the award deficient. We refuse the Union's invitation to reconsider the Authority's precedent that arbitration awards are not precedential. The Authority's approach is based on the longstanding practice in private sector labor relations cases. In our view, the approach serves the purposes of arbitration and to change the approach would not effectuate the policies of the Statute.

As developed in the private sector, the principle that arbitration awards are not precedential recognizes that arbitrators must not abdicate their function of independent judgment. See generally Owen Fairweather II, Practice and Procedure in Labor Arbitration 374-82 (3d ed. 1991); Frank Elkouri and Edna A. Elkouri, How Arbitration Works 414-36 (4th ed. 1985). As part of the process of arbitration, it is the responsibility of arbitrators to exercise independent and impartial judgment on the issues before them. Certainly, they should consider the reasoning and conclusions that led to the result in another arbitration award, but it is the selected arbitrator whom the parties have commissioned to bring an "informed judgment to bear in order to reach a fair solution of [the] problem." Steelworkers v. Enterprise Wheel and Car Corp., 363 U.S. 593, 597 (1960). Thus, it is the duty of the selected arbitrator to resolve the matter consistent with how he or she views the equities in the case which is to be decided. In addition, the informality of arbitration, which is one of its greatest advantages, would be lost if an arbitrator is bound by precedent.

The Union fails to persuade us that this practice warrants reconsideration in the Federal sector. Moreover, the Union's argument that this policy does not work well in nationwide consolidated units merely suggests to us that the Union's solution lies in collective bargaining and not in the review process under section 7122 of the Statute.

Accordingly, we will deny the Union's exception.

V. Third Exception

A. Union's Contentions

The Union contends that the Arbitrator was obligated to apply to the facts of this case the standards of proof for EDP that he ruled would apply prospectively. The Union asserts that, under these standards and in view of the Arbitrator's finding that the Agency had not properly monitored or tested for asbestos, the Arbitrator was required to impose the burden on the Agency to show that no exposure entitling employees to EDP had occurred. The Union argues that, because the award shows that the Agency could not have met this burden, the Arbitrator should have awarded EDP to affected employees in all the disputed situations and that, consequently, the award is deficient.

B. Analysis and Conclusions

We conclude that the Union fails to establish that the award is deficient. The Union has asserted that the Arbitrator should have applied a standard of proof that the Arbitrator ruled would apply prospectively only and that the Arbitrator should have awarded EDP to affected employees in all of the disputed work situations. In our view, the Union is merely disagreeing with the Arbitrator's determination of the standard of proof that would apply and his evaluation of evidence and testimony under that standard to determine that EDP was warranted only in the removal of the tile in building 27. Such disagreement provides no basis for finding an arbitration award deficient. See U.S. Department of the Treasury, U.S. Customs Service, Region IV, Miami District and National Treasury Employees Union, Chapter 137, 41 FLRA 394, 398 (1991) (unless a specific standard of proof is required, an arbitrator may establish and apply whatever standard the arbitrator considers appropriate); Antilles Consolidated Education Association, OEA/NEA and U.S. Department of Defense, Antilles Consolidated School System, 38 FLRA 341, 350 (1990) (disagreement with an arbitrator's evaluation of the evidence and testimony provides no basis for finding an arbitration award deficient). Accordingly, we will deny the Union's exception.

VI. Fourth Exception

A. Union's Contentions

The Union contends that the award is deficient to the extent that the Arbitrator directed the parties to bargain over the local procedures to be followed with regard to monitoring, sampling, and testing of asbestos and with regard to the provision of information to the Union.

The Union argues that the award is deficient because the Arbitrator was required to decide the issues presented and directing the parties to bargain does not constitute a resolution of these issues. The Union also argues that the award is deficient because the Arbitrator retained jurisdiction to resolve any bargaining impasses. The Union asserts that, by imposing his supervision over these matters, the Arbitrator has interfered with the statutory rights of the Union to utilize the Federal Service Impasses Panel (Panel) and to file unfair labor practice charges over those matters, all without cost to the Union. The Union maintains that this situation is similar to the situation in American Federation of Government