45:0980(99)AR - - AFGE Local 236 and GSA, Region 6, KS City, MO - - 1992 FLRAdec AR - - v45 p980



[ v45 p980 ]
45:0980(99)AR
The decision of the Authority follows:


45 FLRA No. 99

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2754 OF COUNCIL 236

(Union)

and

GENERAL SERVICES ADMINISTRATION

REGION 6

KANSAS CITY, MISSOURI

(Agency)

0-AR-2273

DECISION

August 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 John J. Mikrut, Jr. 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 Union filed a grievance claiming that Service Contract Work Inspectors were entitled to environmental differential pay (EDP) for exposure to asbestos and that Planner/Estimators and Maintenance Contract Work Inspectors were entitled to EDP retroactive to the date on which a prior grievance was filed. The Arbitrator denied the grievance requesting EDP for the Service Contract Work Inspectors. He also found that the Planner/Estimators and Maintenance Contract Work Inspectors were entitled to payments of EDP retroactive only to the date of the instant grievance. The Union contends that the Arbitrator's award is deficient. For the following reasons, we will deny the Union's exceptions.

II. Background and Arbitrator's Award

On April 12, 1989, the Union filed a grievance claiming that all bargaining unit employees were entitled to EDP for exposure to asbestos. That grievance was submitted to Arbitrator Kent Hutcheson. In his award, Arbitrator Hutcheson ruled that those employees in the "'maintenance portion of the work force and further restricted to those to whom a breathing device has been issued'" were entitled to EDP. Award at 11, quoting Arbitrator Hutcheson's award. The Agency filed exceptions to Arbitrator Hutcheson's award with the Authority. Those exceptions were denied in U.S. General Services Administration, Kansas City, Missouri and American Federation of Government Employees, Council 236, 38 FLRA 438 (1990). The Authority dismissed as untimely the Union's request that the Agency be found "'derelict'" for failing to have an occupational safety and health program and "'to include all maintenance employees'" in the award of EDP. Id. at 443-44. Thereafter, Arbitrator Hutcheson held a second hearing to determine which employees were entitled to receive EDP under his award and to decide for what period of time each employee would be paid. He found that 41 employees were covered by the award and denied the Union's request to include Service Contract Work Inspectors, Planner/Estimators, and Maintenance Contract Work Inspectors, ruling that he had no authority to make such a finding.

Subsequently, "in a letter . . . dated June 18, 1991, which appears to have been received by the Agency on June 28, 1991," the Union filed a grievance requesting EDP for exposure to asbestos for Service Contract Work Inspectors, Planner/Estimators, and Maintenance Contract Work Inspectors. Award at 14. The Agency agreed to pay EDP to Planner/Estimators and one Maintenance Contract Work Inspector effective August 11, 1991. The unresolved portion of the grievance was submitted to arbitration on the following stipulated facts and issues:

FACTS

1. A previous arbitration hearing was held regarding environmental differential pay (EDP). The arbitrator found that maintenance employees who had been issued respirators were entitled to EDP.

2. A subsequent arbitration hearing was held to clarify the original decision. The arbitrator did not include [P]lanner/[E]stimators and work

inspectors in the group receiving EDP. He stated that matter is left to future bargaining or a subsequent grievance by those employees.

3. A grievance was filed on June 28, 1991, requesting EDP for [P]lanner/[E]stimators and work inspectors.

4. As stated in the August 12, 1991 grievance decision, the Agency began paying EDP to the [P]lanner/[E]stimators and the [M]aintenance [Contract] [W]ork [I]nspector. The Agency did not find that [S]ervice [C]ontract [W]ork [I]nspectors were entitled to EDP.

ISSUES

Are the [S]ervice [C]ontract [W]ork [I]nspectors in the North and South Field Offices entitled to receive environmental differential pay for exposure to asbestos? If so, are they also entitled to receive back pay?

Are the [P]lanner/[E]stimators and [M]aintenance [Contract] [W]ork [I]nspector entitled to receive environmental differential back pay for exposure to asbestos?

Id. at 16-17.

The Arbitrator noted that the parties' collective bargaining agreement states that EDP will be paid in accordance with Federal Personnel Manual (FPM) Supplement 532-1, Subchapter S8-7, Appendix J. Appendix J provides:

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.

Applying the standard in Appendix J to the Union's claim that Service Contract Work Inspectors are entitled to EDP for exposure to asbestos, the Arbitrator found that there was insufficient evidence to support the claim. He stated that:

there is no evidence whatsoever contained in the record to establish that on any such occasion any such employee has, in fact, actually been exposed to, or could have potentially been exposed to ". . . airborne concentrations of asbest(os) fibers . . . of an unusually severe nature . . ." to the degree and/or frequency as contemplated by the applicable provisions [of] either the Federal Personnel Manual Supplement [or] the collective bargaining agreement.

Id. at 31.

The Arbitrator also found that Service Contract Work Inspectors were not included as grievants in Arbitrator Hutcheson's award and that they were not entitled to EDP on the basis used by Arbitrator Hutcheson--working with bulk asbestos and being issued and using respirators in the regular course of their work. The Arbitrator noted that although Service Contract Work Inspectors had been issued respirators in the past, they were no longer issued respirators and their duties did not involve exposure to airborne asbestos. He found that:

there is no evidence whatsoever contained in the record to establish or even suggest that said respirators were ever utilized by any Service Contract Work Inspector for such purposes . . . . More importantly, the record herein also fails to show that any Service Contract Work Inspector ever complained of having to enter an area which allegedly contained airborne concentrations of asbestos fibers . . . .

Id. at 32.

The Arbitrator rejected the Union's argument that the Service Contract Work Inspectors were entitled to EDP because of an "alleged interchangeability of duties between the Service Contract Work Inspector and the Maintenance Contract Work Inspector [positions]." Id. at 33. The Arbitrator found no basis for an award of EDP based only on an employee's "contingency or on-reserve status." Id. Accordingly, the Arbitrator denied the Service Contract Work Inspectors' claim to EDP.

The second issue before the Arbitrator concerned the period of time for which Planner/Estimators and Maintenance Contract Work Inspectors were entitled to retroactive EDP for exposure to asbestos. The Union contended that employees in those categories were entitled to EDP retroactive to April 12, 1989, a date that was set by Arbitrator Hutcheson in his clarifying award. The Agency contended that the parties' collective bargaining agreement requires that a grievance be filed within 30 days of when a party becomes aware of a violation and that the Agency had begun paying EDP to Planners/Estimators and Maintenance Contract Work Inspectors in a timely manner. The Arbitrator ruled that those employees were entitled to EDP retroactive to June 18, 1991, the date that the Union filed a written grievance.

The Union also contended that because a Maintenance Contract Work Inspector at the Kansas City North Field Office was issued a personal respirator and paid EDP, all other Maintenance Contract Work Inspectors were entitled to EDP. The Arbitrator rejected that argument on the ground that the Union failed to show that all Maintenance Contract Work Inspectors at offices other than Kansas City performed the same duties as the Kansas City Maintenance Contract Work Inspector or that they "had been issued respirators due to their potential exposure to airborne concentrations of asbestos fibers while in the performance of their regular work duties." Id. at 35.

The Arbitrator made the following award:

A. The Service Contract Work Inspectors in the Kansas City North Field Office and the Kansas City South Field Office are not entitled to receive environmental differential pay for their alleged exposure to asbestos; and

B. The Planner/Estimators and the Maintenance Contract Work Inspectors in the Kansas City North Field Office and the Kansas City South Field Office, although acknowledged by Management and the Union to otherwise be entitled to receive EDP for exposure to asbestos, nonetheless, are not entitled to receive said EDP retroactive to April 12, 1989, as requested by the Union, but instead, said EDP back pay shall only be made retroactive to June 18, 1991.

Id. at 37.

III. Positions of the Parties

A. The Union

The Union contends that the Arbitrator erred by finding that Service Contract Work Inspectors are not entitled to EDP and asserts that the Arbitrator ignored the record, including the award of Arbitrator Hutcheson, which "clearly states that potential for contact with hazardous material exists and will continue to exist . . . ." Exceptions at 1. The Union maintains that the Agency's failure to implement an occupational safety and health program from 1972 to 1984 resulted in harm to employees because air quality was not monitored, there were no asbestos warning signs posted, and there was no identification of employees exposed to asbestos.

The Union notes that in its opposition to the Agency's exceptions to the award of Arbitrator Hutcheson, it asked the Authority "to include all bargaining unit maintenance employees in the North and South groups in its back pay claim for hazardous duty pay . . . from March 9, 1975 to the present time." Id. at 3.*/ The Union asserts that there "is no basis for the claim that Service Contract Work Inspectors are not exposed to airborne fibers merely by walking into an area that has been identified as having asbestos items/materials in it." Id.

The Union contends that the position descriptions for Service Contract Work Inspectors require respirators and protective clothing for asbestos. The Union also argues that Service Contract Work Inspectors have been detailed to perform the duties of Maintenance Contract Work Inspectors and, therefore, are entitled to EDP. The Union maintains that the Agency's failure to include a reference to asbestos in some position descriptions and its failure to issue respirators to some employees does not mean that employees performing appropriate work should not receive EDP. The Union notes that the Agency "determined potential for asbestos exposure from occupational series and employee names." Id. at 10. The Union concludes that the record "clearly indicates" that Service Contract Work Inspectors, Maintenance Contract Work Inspectors, and Planner/Estimators should receive EDP for exposure to asbestos retroactive to April 12, 1989. Id. at 11.

B. The Agency

The Agency maintains that the Union's exceptions do not establish that the Arbitrator's award is contrary to any law, rule, or regulation or that the award is deficient under section 7122(a) of the Statute. The Agency contends that the Union is merely disagreeing with the Arbitrator's conclusions and attempting to relitigate the grievance before the Authority.

IV. Analysis and Conclusions

We conclude that the Union's exceptions fail to establish that the Arbitrator's award is deficient on any grounds set forth in section 7122(a) of the Statute. Accordingly, we will deny the exceptions.

We construe the Union's exception that the Arbitrator erred in finding that Service Contract Work Inspectors were not entitled to EDP as a contention that the Arbitrator's award is contrary to a Government-wide regulation, specifically FPM Supplement 532-1, Appendix J. 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). We conclude that the Union fails to establish that the award is deficient on that basis.

It is well established that the specific work situations for which EDP is payable under the categories of FPM Supplement 532-1, Appendix J are left to local determination, including arbitration. See U.S. Department of the Army, Lexington-Blue Grass Army Depot, Lexington, Kentucky and International Association of Machinists and Aerospace Workers, Lodge 859, 43 FLRA 1074, 1082-83 (1992). In this case, the Arbitrator, based on the record presented to him, determined that the Service Contract Work Inspectors were not exposed to the conditions specified in Appendix J to support entitlement to EDP for exposure to asbestos. The Union's exception fails to show that the Arbitrator's award is contrary to Appendix J. Rather, the exception constitutes nothing more than disagreement with the Arbitrator's evaluation of the evidence and his reasoning and conclusions and is an attempt to relitigate the matter before the Authority. Such an assertion provides no basis for finding an award deficient. See American Federation of Government Employees, Local 1840 and U.S. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas, 45 FLRA 497, 499-500 (1992).

Further, we conclude that the Union's contentions that the Agency failed to implement an occupational safety and health program from 1972 to 1984 do not establish that the Arbitrator's award is deficient. Whether the Agency failed to comply with occupational safety and health law and regulations is irrelevant to the award in this case because FPM Supplement 532-1, Appendix J provides the basis for an award of EDP. The Union is merely disagreeing with the Arbitrator's conclusions regarding the grievants' entitlement to EDP under Appendix J.

To the extent that the Union's exceptions can be construed as contentions that the Arbitrator's award is deficient because the Arbitrator did not comply with the prior award of Arbitrator Hutcheson, the exceptions provide no basis for finding the award deficient. The Authority has consistently held that arbitration awards are not precedential and, therefore, a contention that an award conflicts with another award provides no basis for finding an award deficient under the Statute. See, for example, American Federation of Government Employees, Local 916 and U.S. Department of the Air Force, Tinker Air Force Base, Oklahoma, 44 FLRA 905, 910 (1992).

Further, the Union's contention that the award is deficient because the Arbitrator failed to order EDP retroactive to August 12, 1989, for Service Contract Work Inspectors, Maintenance Contract Work Inspectors, and Planner/Estimators provides no basis for finding the award deficient. The Union is merely disagreeing with the Arbitrator's determination as to the period for retroactive EDP under the parties' collective bargaining agreement. Nothing in the Back Pay Act, 5 U.S.C. ° 5596, or Appendix J of FPM Supplement 532-1 specifies the appropriate period of time for which an EDP payment is due. See 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). The Arbitrator determined that under the parties' agreement, the appropriate period for backpay began on the day the Union filed the grievance. The Union's disagreement with that determination constitutes mere disagreement with the Arbitrator's interpr