50:0160(30)AR - - AFGE, Local 987 and Air Force Logistics Command, Robins AFB, Warner Robins, GA - - 1995 FLRAdec AR - - v50 p160
[ v50 p160 ]
The decision of the Authority follows:
50 FLRA No. 30
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
AIR FORCE LOGISTICS COMMAND
ROBINS AIR FORCE BASE
WARNER ROBINS, GEORGIA
February 24, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator Arthur T. Van Wart 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 denied grievances seeking environmental differential pay (EDP) for bargaining unit employees.
For the following reasons, we conclude that the Union has not established that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.
II. Background and Arbitrator's Award
The Union filed grievances seeking EDP pursuant to the parties' collective bargaining agreement for employees who worked in a particular building. The Arbitrator denied the grievance relying on the unrefuted testimony of an Agency witness that the level of protection that was afforded employees exceeded Occupational Safety and Health Administration requirements. The Arbitrator found that air tests in the building where the employees worked had not demonstrated the existence of a hazard and that no degree of employee exposure to hazardous materials had been shown. The Arbitrator also found that the Agency had installed an exhaust system to eliminate the hazardous materials from the building, had adopted the use of improved equipment and clothing, and had discontinued use of the hazardous material in dispute.
Based on the foregoing, the Arbitrator denied the grievance.
A. Union's Contentions
The Union contends that the Arbitrator failed to conduct a fair hearing because he found that the evidence was insufficient to demonstrate hazardous conditions warranting EDP without ruling on the Union's claim that the Agency had prevented it from obtaining evidence. According to the Union, the Arbitrator should have assumed that the evidence it would have obtained would have demonstrated conditions warranting EDP.
B. Agency's Position
The Agency construes the Union's exception as a claim that the Arbitrator improperly failed to shift the burden of proof to the Agency. The Agency asserts that the Union has not cited any law or provision of the parties' agreement that requires such a shift in the burden of proof and has not demonstrated that the Agency violated the Statute by denying the Union access to the building.
IV. Analysis and Conclusions
To the extent that the Union contends that the Arbitrator erred by failing to address the issue of whether the Agency prevented it from obtaining evidence, we find that the Union's contention does not provide a basis for finding the award deficient under section 7122(a) of the Statute. See U.S. Department of Health and Human Services, Appalachian Laboratory for Occupational Safety and Health, National Institute for Occupational Safety and Health, Centers for Disease Control and Prevention and American Federation of Government Employees, Local 3430, 49 FLRA 1150, 1157 (1994). There is no indication in the record that the parties stipulated the issue to be resolved by the Arbitrator. In the absence of a stipulation by the parties of the issue to be resolved, an arbitrator's formulation of the issue is given substantial deference. See Air Force Space Division, Los Angeles Air Force Station, California and American Federation of Government Employees, Local 2429, 24 FLRA 516, 518-19 (1986).
The Arbitrator construed the issue presented by the grievances as whether the grievants were entitled to EDP under the parties' agreement and the Federal Personnel Manual, chapter 532-1, subchapter S8-7 Appendix J. As framed by the Arbitrator, the issue does not include a question concerning whether the Agency improperly precluded the Union from obtaining evidence. The Arbitrator's award is directly responsive and properly confined to the issue as he framed it. U.S. Department of Agriculture, Food Safety and Inspection Service, Western Region and National Joint Council of Food Inspection Locals, Southwest Council, Local 925, American Federation of Government Employees, 36 FLRA 393, 400 (1990) Consequently, the Union has not shown that the award is deficient because the Arbitrator failed properly to resolve the issues involved in the grievance. For example, U.S. Department of the Army, Combined Arms Center, Fort Leavenworth, Kansas and American Federation of Government Employees, Local 738, 39 FLRA 877, 883 (1991).
Alternatively, the Union's contentions may be construed as a claim that the Arbitrator failed to provide a fair hearing because he failed to assume that the evidence the Union would have obtained would have demonstrated that the grievants were entitled to EDP. An award will be found deficient on this ground when it is established that an arbitrator's refusal to hear or consider pertinent and material evidence, or other actions in conducting the proceeding, prejudiced a party so as to affect the fairness of the proceeding as a whole. See American Federation of Government Employees, Local 1668 and U.S. Department of the Air Force, Elmendorf Air Force Base, Anchorage, Alaska, 50 FLRA No. 25, slip op. at 3 (1995). The Union has not demonstrated that the Arbitrator conducted the proceeding in a manner that resulted in prejudice to the Union which affected the fairnes