49:0553(49)AR - - Navy Public Works Center, San Diego, CA and NAGE, Local R12-35 - - 1994 FLRAdec AR - - v49 p553



[ v49 p553 ]
49:0553(49)AR
The decision of the Authority follows:


49 FLRA No. 49

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF THE NAVY

NAVY PUBLIC WORKS CENTER

SAN DIEGO, CALIFORNIA

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R12-35

0-AR-2522

_____

DECISION

March 18, 1994

_____

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 Samuel A. Vitaro 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 are hazardous waste handlers. On March 3, 1992, the grievants filed a group grievance claiming entitlement to EDP under law, regulation, and the parties' agreement. When the grievance was not resolved, it was submitted to arbitration.

The Arbitrator framed the issues as follows:

1. Have protective devices or safety measures practically eliminated the potential for serious personal injury or personal injury?

2. If not, what environmental pay differential should be paid and for what period of time?

Award at 13.

The Arbitrator found that the matter before him was governed by 5 U.S.C. § 5343(c)(4), which requires the Office of Personnel Management (OPM) to provide, by regulation, "for proper differentials . . . for duty involving unusually severe working conditions or unusually severe hazards[.]" The Arbitrator further found that in accordance with this mandate, OPM promulgated FPM Supplement 532-1, subchapter S8-7c, which provides EDP for wage grade employees "who [are] exposed to a hazard, physical hardship, or working condition . . . listed under the categories in [A]ppendix J . . . ."(1) As explained by the Arbitrator, Appendix J includes two categories of hazards for which exposure to toxic chemicals warrants the payment of EDP.(2) The Arbitrator noted that under the "high degree hazard" category, an 8 percent differential is authorized for employees whose work with toxic chemicals involves the potential for serious personal injury and protective devices and/or safety measures have not practically eliminated the potential for such personal injury. Additionally, under the "low degree hazard" category, a 4 percent differential is authorized for employees whose work involves the potential for personal injury and protective devices and/or safety measures have not practically eliminated the potential for such injury. The Arbitrator noted that the low degree hazard category involves situations that do not require employees to be in as direct contact with, or exposed to, the more toxic agents, as is required under the high degree hazard. The Arbitrator determined that the focus of the inquiry in this case involved the regulations concerning the low degree hazard.

Next, the Arbitrator addressed the question of "whether protective devices or safety measures have practically eliminated the potential for personal injury." Id. at 16 (emphasis in original). In this connection, the Arbitrator stated that whether the potential for personal injury has been practically eliminated by the use of protective devices or safety measures is defined by the meaning of such terms as "unusually severe working conditions or . . . hazards" and "practically eliminated the potential for personal injury." Id. at 18. According to the Arbitrator, "[i]n seeking to interpret these terms, case law suggests that the standard of 'unusually severe' hazards does not include infrequent, minor problems such as headaches and rashes." Id. at 18 (quoting Bendure v. United States, 695 F.2d 1383, 1388 (Fed. Cir. 1982) (Bendure)). He also stated that the focus of both statutory and regulatory authorities is not solely on exposure or potential for exposure, but is also on the "potential for personal injury." Id. (citing O'Neall v. United States, 797 F.2d 1576, 1581-1582 (Fed. Cir. 1986)). In the Arbitrator's view, the conditional nature of the language contained in the regulations, as well as the high standard contained in the statute, "indicates that some exposure and even some minor and occasional injuries are allowable" without triggering an entitlement to EDP. Id. In this connection, the Arbitrator found that there were few instances of injury attributable to the handling of toxic substances over a three year period of time and that the injuries were relatively minor. Specifically, the Arbitrator found that there were five injuries during that time period, consisting of burns, rashes, and eye irritations. The Arbitrator stated that nearly all of those injuries were a result of unsafe practices, rather than hazardous waste handling. Accordingly, based on the evidence before him, the Arbitrator concluded that "the protective devices and safety measures required and provided by the [A]gency [were] consistent with the risks encountered by hazardous waste workers at the workplace, thus far." Id.

Finally, the Arbitrator rejected the Union's position that entitlement to EDP should turn less on actual injuries sustained and more on whether the equipment and surveys utilized by the Agency were reasonable. In the Arbitrator's view, evidence of injuries is "extremely significant." Id. at 19. The Arbitrator also stated that while there may be situations where EDP is justified without actual injury, there would have to be expert testimony linking the exposure to potential injury or illness. Based on his findings in this case, however, the Arbitrator concluded that the Union failed to demonstrate that protective devices and/or safety measures had not practically eliminated the potential for personal injury. Accordingly, the Arbitrator found that the grievants were not entitled to EDP and he denied the grievance.

III. Union's Exception

The Union contends that the Arbitrator's decision is "based on a faulty interpretation of the statutory intent of the regulation." Exception at 1. In support, the Union maintains that "policy" mandates that employees are entitled to EDP where they are exposed to potentially dangerous toxins that have not been studied to determine possible side effects. Id.

First, the Union argues that 5 U.S.C. § 5343 reflects Congress' intent to "reward" employees working under extraordinary conditions that could lead to personal injury. Id. at 2. In the Union's view, "any potential for personal injury under a low degree hazard" creates an entitlement to EDP. Id. at 3. Therefore, the Union asserts that if an employee is injured, Appendix J authorizes EDP and the Arbitrator incorrectly interpreted the regulations when he stated that "a serious injury must occur" for an employee to receive EDP. Id. at 6.

The Union also maintains that the grievants sustained injuries while wearing protective gear and that the Arbitrator erroneously relied on Bendure for the proposition that the headaches and rashes suffered by the grievants do not constitute "unusually severe hazards." Id. at 3. According to the Union, the injuries involved in the instant grievance were more serious than those involved in Bendure and, therefore, warrant the payment of EDP.

In addition, the Union claims that the Arbitrator placed undue emphasis on the term "practically" in the statute.(3) According to the Union, an injury need not occur to create an entitlement to EDP and an employee is entitled to receive it where protective devices fail. In support of this assertion, the Union points out that the grievants are responsible for the removal of hazardous wastes and materials and that, on occasion, these materials are mislabeled. Consequently, the Union explains that the grievants may be prepared for the removal of one substance and find, due to mislabeling, that a higher level of protection was required. Therefore, the Union argues that the grievants' work involves a potential for personal injury despite the wearing of protective devices and that the Arbitrator wrongfully denied the grievance.

Finally, the Union asserts that the Arbitrator erred in determining that "the burden for showing the potential for injury rested with the [U]nion." Id. at 5. The Union argues that the Agency had a duty under the parties' agreement to provide and maintain safe working conditions for its employees. In the Union's view, if the Agency had met its obligation to monitor and survey potentially dangerous areas, the Arbitrator would have been correct in placing the burden of proof on the Union. However, the Union contends that because the Agency failed to effectively monitor the potential for harm, the burden should have been on the Agency to show that there was no potential for injury. The Union argues that if judged by that standard, the Agency failed to meet its burden and the Arbitrator should have sustained the grievance.

IV. Analysis and Conclusions

We conclude that the Union has not established that the Arbitrator's award is deficient on any of the grounds set forth in section 7122(a) of the Statute. Consequently, we will deny the exception.

First, we reject the Union's contention that the award is deficient because the Arbitrator incorrectly applied the burden of proof. If a standard of proof is set forth in law, rule, regulation, or a collective bargaining agreement, an arbitrator's failure to apply the prescribed standard will constitute a basis for finding the award deficient as contrary to law, rule, regulation, or as failing to draw its essence from the agreement. See, for example, United States Customs Service and National Treasury Employees Union, 22 FLRA 607, 608-09 (1986). However, in the absence of a specified standard of proof, arbitrators have the authority to establish whatever standard they consider appropriate, and we will not find an award deficient because a party claims that an incorrect standard was used. U.S. Department of Veterans Affairs, National Memorial Cemetery of the Pacific and International Association of Machinists and Aerospace Workers, Hawaii Federal Lodge 1998, 45 FLRA 1164, 1171 (1992). Moreover, unless otherwise provided, establishing the standard encompasses specifying which party has the burden of proof under the established standard. Id. at 1171.

In this case, we conclude that the Union has failed to demonstrate that the Agency was required to bear the burden of proof under law, rule, regulation, or the parties' agreement. Although the Union argues that the Agency had a duty under the parties' agreement to provide and maintain safe working conditions for its employees, we are not persuaded that this provision required the Agency to bear the burden of proof in the instant grievance. Additionally, the Union has not established that law, rule, or regulation placed the burden of proof on the Agency. Therefore, in the absence of any established burden of proof, the Arbitrator was free to determine which party was required to prove that the potential for personal injury either had or had not been practically eliminated by the use of protective devices and/or safety measures. Consequently, the Union's contention that the Arbitrator erred in applying an incorrect burden of proof fails to establish that the award is deficient. See U.S. Department of the Navy, Naval Aviation Depot, Norfolk, Virginia and International Association of Machinists and Aerospace Workers, Local 39, 36 FLRA 217, 222 (1990).

Next, we reject the Union's contention that the award is deficient because it fails to grant EDP to the grievants. FPM Supplement 532-1, Appendix J is a Government-wide regulation that lists categories of situations, such as exposure to toxic chemicals, that warrant the payment of EDP. See, for example, U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina and Federal Employees Metal Trades Council, 39 FLRA 987, 991 (1991). In order to justify EDP, all the pertinent regulatory requirements must be met. See, for example, U.S. Department of the Air Force, Langley Air Force Base, Hampton, Virginia and National Association of Government Employees, Local R4-106, 41 FLRA 246, 249 (1991) (Langley Air Force Base) (discussing requirements for EDP based on exposure to toxic chemicals); 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) (discussing requirements for EDP based on exposure to explosives).

As the Arbitrator correctly observed, the category pertaining to exposure to toxic chemicals is divided into high degree and low degree hazards. Under the category governing exposure to a low degree hazard, the payment of EDP is conditioned on findings that: (1) employees work with or in close proximity to toxic chemicals that involve the potential for personal injury; and (2) protective devices and/or safety measures have not practically eliminated the potential for personal injury. FPM Supplement 532-1, Appendix J, Part II, Category 5. Both of these requirements must be satisfied to establish an entitlement to EDP. In this case, the Arbitrator applied the standards and concluded, based on the evidence before him, that the Union failed to prove that protective devices and/or safety measures had not practically eliminated the potential for personal injury.

The Union excepts to the award on the ground that the Arbitrator incorrectly interpreted the regulations. More specifically, the Union maintains that under the regulation governing payment of a low degree hazard differential, "any potential for personal injury" establishes an entitlement to EDP. Exception at 3. As set forth above, however, in addition to a finding that the grievants worked with toxic chemicals that involved the potential for personal injury, it must be demonstrated that the potential for personal injury had not been practically eliminated by the use of protective devices or safety measures. The Union's interpretation of the regulation ignores the second requirement of the standard. Accordingly, we conclude that this contention must be rejected.

We also reject the Union's assertion that the Arbitrator incorrectly interpreted the regulations when he stated that "a serious injury must occur" for an employee to receive EDP. Exception at 6. To the extent the Union is contending that the Arbitrator applied the wrong standard, we note that the Arbitrator specifically found that the instant grievance was governed by the regulations concerning a low degree hazard and accordingly "turn[ed] on whether protective devices or safety measures ha[d] practically eliminated the potential for personal injury." Award at 16 (emphasis omitted). As this finding clearly reflects, the Arbitrator did not analyze the grievance under the regulations governing payment of EDP based on exposure to a high degree hazard but, rather, analyzed the grievance under regulations governing exposure to a low degree hazard. Accordingly, the Union fails to establish that the award is deficient in this regard.

To the extent the Union is arguing that the injuries involved in the instant grievance were sufficiently serious to warrant the payment of EDP under the regulations concerning low degree hazards, we find no merit to the Union's contention. The Arbitrator found that few injuries were sustained and that each of the injuries was relatively minor. Therefore, the Arbitrator concluded that the Union failed to prove an entitlement to EDP. In our view, the Union's contention constitutes disagreement with the Arbitrator's findings of fact and conclusions. As such, this contention provides no basis for finding the award deficient. See Langley Air Force Base, 41 FLRA at 249. In this regard, the Union has not established that the Arbitrator erroneously relied on Bendure for the proposition that headaches and rashes do not constitute "unusually severe hazards." Exception at 3.

Finally, we reject the Union's claims that the award is deficient because the Arbitrator placed undue emphasis on the term "practically." According to the Union, an injury need not occur to establish an entitlement to EDP, and an employee is entitled to receive EDP where protective devices fail. The Union argues that because the grievants' work involves the potential for personal injury that cannot be eliminated through the use of protective devices or safety measures, the Arbitrator wrongly denied the grievance. We disagree.

First, the Arbitrator found, based on the evidence before him, that "the protective devices and safety measures required and provided by the [A]gency [were] consistent with the risks encountered by hazardous waste workers at the workplace," and, therefore, that the Agency had practically eliminated the potential for personal injury. Award at 18. Second, the Arbitrator observed that the statutory and regulatory requirements authorizing EDP "suggest that any 'potential' sought to be eliminated is not absolute." Id. at 18. According to the Arbitrator, the conditional nature of the language contained in the regulations, as well as the high standard contained in the statute "indicates that some exposure and even some minor and occasional injuries are allowable" without establishing an entitlement to EDP. Id.

In our view, the Union has failed to demonstrate that the award conflicts with the regulatory requirements. Instead, the Union's exception constitutes mere disagreement with the Arbitrator's findings of fact and conclusions based thereon. Consequently, this contention does not establish that the award is deficient. See Langley Air Force Base (rejecting union's contention that award was based on an erroneous interpretation of the FPM because arbitrator improperly equated the term "practically eliminated" with "probability").

Accordingly, as the Union's exception fails to establish that the award is deficient, we will deny the exception.

V. Decision

The Union's exception is denied.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Although unnecessary to our decision, we note that during the pendency of this case, various provisions of the FPM were abolished and others were provisionally retained through December 31, 1994. See FPM Sunset Document at 1. FPM Supplement 532-1 has been provisionally retained. See id., Chapter Summary Sheet at 68. However, the language of Appendix J would remain viable in any event because it is also contained in the Code of Federal Regulations. See Appendix A to subpart E of 5 C.F.R. part 532.

2. FPM Supplement 532-1, Appendix J, Part II states, in relevant part:

4. Poisons (toxic chemicals)--high degree hazard. Working with or in close proximity to poisons (toxic chemicals), other than tear gas or similar irritants, which involves potential serious personal injury such as permanent or temporary, partial or complete loss of faculties and/or loss of life including exposure of an unusual degree to toxic chemicals, dust, or fumes of equal toxicity generated in work situations by processe